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Vol. XIX. No. 10. 


OCTOBER, 1904. 


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Appeal Ca$e 


The Decision of the House of Lords 

Full Text of the Judgments 




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THE 


80 Z 


SCOTTISH CHURCH 
APPEAL CASE. 


The Decision of the House of Lords. 


The Appeal of the Free Church Sustained 
By Five To Two, August i, 1904. . . . 


Full Text of the Judgments. 


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Introductory. 

tj£ 


This Issue of the Eagle Library Is the result of nuiner* 
oui solicitations, and was made possible by the receipt 
here: of full reports of the case as submitted to, and de¬ 
cided by the British House of Lords, For the text of the 
report the Eagle is under obligations to the Glasgow 
Herald of August 2. 1904. 

(u 1813 the non-intrusion 'element In the Established 
Church of Scotland signed a declaration, and left that 
church. In leaving, the ministers immediately inter¬ 
ested surrendered their pulpits and their manses—and 
so far as the country parishes were concerned, their 
Itotnes. It was tlitn that the Free Church was estab¬ 
lished. But it does not seem to have been free enough to 
insure permanency. It held fast to the assertion that the 
State should support, but not dominate the Church. The 
Voluntary Church agitation exacted absolute and con¬ 
sistent separation of Church and State, a position com¬ 
batted by the Rev. L>rs. Chalmers. Candlish, and others. 
In the year 1847 two other bodies of the Presby¬ 
terian family, the United Secession, and the Relief, 
formed a union, and became known as the United Pres¬ 
byterian Church. Of course, the State support did not 
reach the Free Church, and it never abrogated the prin¬ 
ciple which favored what was known as non-intrusion 
on the part of the State. To its susteutation and its mis¬ 
sionary funds benefactions were made by the faithful, it 
!s presumed, or* the basis of the doctrines and policy de¬ 
clared by Dr. Chalmers, and other leaders at the time of 
the great Disruption. The agitation of Christian Union 
on evangelical lines which has for years filled the relig 
ious atmosphere all the world over, had its influence 
upon the Free Church and the United Presbyterian 
Church, both bodies developing gradually that mutual 
sympathy which was necessary to the proposition of 
unity in organization. So far as the record goes the 
Free Church never changed its attitude in regard to the 
duty of the State to support the Church, relying, doubt¬ 
less. upon the traditional practice of "going on to perfec¬ 
tion,” and old laws becoming obsolete. For once, this 
English practice in the matter of law appears, in this 
case, to have miscarried. 

In 190C* the Free Church and the United Presbyterian 
Church united their fortunes, and became one body, 
ecclesiastically known as the United Free Church. The 
spirit of Christian Union did not, however, enter into the 
hearts of a remnant of the clergy and elders of the Free 
Church. They were not content with the minority rule 
appertaining to church assemblies, and they, protested 


against the union and appealed to the Court of Session, 

. ... • • ■ 

claimiiig that they were the only genuine and rightful 
Free Church of Scotland, and were entitled to all that 
belonged to that uuseceded body. The Court of Session 
decided against the appellants. Thereupon the Free 
Church remnant carried their appeal to the House of 
Lords.. . The result is furnished in the full report of the 
• case herewith presented. . 

When the Free Church was organized in 1813 a depu¬ 
tation headed by the Rev. Dr. Willis, of Glasgow, visited 
the United States, and appealed to the churches here for 
assistance, an nppcgl which was generously responded 
to, and was greatly appreciated by the Scottish people 
generally beyond me limits of the Free Church. If the 
triumphant party in the present case push their claim to 
the dire extremity, it is riot at all improbable that the 
churches of this country will he presented with another 
opportunity of rendering, aid to tlie great sister Church 
which has been worsted by the decision of the British 
law Lords. To that end. the publication of the report of 
the case in this form is deemed of importance as a 
means of thoroughly enlightening the people of this 
country upon its details and its merits. Already inquiry 
as to the real meaning of the contest which has. so far, 
ended disastrously to the interests of the United Free 
Church, is earnest and persistent. 

There is sympathy with the United Free Church ex¬ 
pressed by many leading Church of Scotland men, and 
there is in the conduct of Christians of all denomina¬ 
tions in England and Scotland the tendency to enjoy the 
blessings of Christian Union in common. This has be¬ 
come visible in their use of the same hymn book, cue of 
the finest collections of religious song extant. The same 
hymnology is the possession of the Church of Scotland, 
the Free Church, the United Free Church, the Presby¬ 
terian Church in England, and in that of Ireland. The 
present case suggests the query of how far the evangeli¬ 
cal doctrine of Christian Union may prevail to justify the 
fact of unity in organization or whether ecclesiastical 
unity is necessary to the observance and enjoyment of 
universal Christian Union. 

In the case, according to the deeisiou of the House of 
1 .orris, it will be seen how important it was to the spirit 
of the decision to explore an antiquated law, and theo¬ 
logical dogmas which preachers iu general do not now 
venture to proclaim as the living gospel of Christ's Salva* 
tion. 













Contents. 




rage. 


Introduction .....'. 

Statement of tlie Case . 

The.case stated by the Glasgow Herald 
. The case in the House of Lords .v. 


The Lord Chancellor on Breach of Trust - - 

The Craigdallie-Aikm n Case. 

Craigie-Marsball Case . 

Dill-Watson Case. 

The Establishment Principle. 

In favor of -Pursuers. .... 

Dr. Chalmers' Authority. 

The Calvanistie and Arminiau Doctrines. . 

The Confession of Faith. 

The Right to Change Doctrines. 


Lord Macnaghten's View of the Case. 

The Tien! and Only Question.... 

An Exclusive Jurisdiction. ..i; . f ^...... v - • 

Dr. Chalmers' Sermon . 

Object of the Fuuds.'.. 

The Establishment Principle. 

Dr. Candlishs Opinion . 

Establishment a Small Question. 

Power of Church to Relax Formula. 

United Free Church Has Preserved Identity 


8 

8 

S 

8 

U 

1 > 

10 

10 

11 

11 

12 

12 

12 

12 

13 

13 

13 

13 


Lord Davey on the Church Trust .. 14 

Settled Law . 14 

The Function of a Civil Court ... 14 

The Charter, of the Free Church. 14 

Establishment Principle a Distinctive Tenet. 14 

Power of Assembly to Alter Doctrine. IT* 

The Confessions. 15 

The Barrier Act.!....Hi 

\Vbat 'the 'Assembly Did .. id 

Free Church and the Confession ... 1(> 

Terms of Trust Deeds .... . it; 


Lord James Reviews the Case. 

Foundations of the Church . 

Dr. Chalmers and Establishment. 

Freedom to Differ. 

The Model Trust Deed. 


Lord James Patrick Bannerman Robertson on Prop* 
erty Rights.. 

The Establishment Question ...*. 

Foundation of the Free Church. 

A Nolde Claim to Allegiance. 

Polity and Separation.. 

Spiritual Independence and Establishment. 

Doctrine of Spiritual Independence.. 

A Very Curious Objection . .. 

Elastic Powers of Altering Constitution ........... 

Historical Fact . 

The Second Book of Discipline. 

. Consuetudinary Law .. 

Original United Seceders. 

The Church Property . 


Id 

17 

17 

18 
IS 

10 

10 

20 

20 

21 

21 


—* > 

23 

24 
24 


Page. 

Lord Nathaniel Lindley of the Minority. 

The Crucial Question .. i . 25 

Claims of the Confession ..... 25 

A Difficult Definition.... i *>*... 25 

Legality of Declaratory Act.«*,... M Jfi .VN 2d 

'The Property Question . .... . .!$' 20 

Conclusion ....v-r.l... 2< 

Lord LNerard Alverstone on the Trust Phase of the 

Case . 27 

, Law as to Funds. 27 

Origin of the Free Church.... 27 

An Essential Principle..... 28 

Former Unions ..... 20 

Free Church and Establishment. 20 

The Union Negotiations . 20 

Court of Sessions Judgments.. ..:. 30 

The Union Documents. 30 

The Model Trust Fund...... 30 

The Declaratory Acts. 31 

Rights of Appellants. 31 

The Formal Decision ..... 31 

Terms of Conclusions . .. 31 

Counsel in the Case.. k . 31 

Pulpit Utterances . 32 

Rev. Professor Orr at Erstine Church. Burntisland.. 32 
Rev. R. Bruce Taylor. Ferryhill Church"! Aberdeen. ... 32 

Rev. John M. Sloan. Grange. Edinburgh. 32 

Rev. Dr. Ross Taylor, Kelvinside, Glasgow. 32 

Rev. Dr. Black. Inverness..’. 32 

Rev. P. A. Gordon Clark, West Church. Pertle.'-.. 33 

Rev. Dr, Ross, Westbourue, Glasgow . 33 

Remarkable Sermon by tbe Free Church Moderator... 33 

Rev. Lewis Davidson, Mayfield, Edinburgh. 33 

Rev. Dr. W. M. Macgregor at St. George's. Edinburgh 33 
Rev. D. M. Macalister, Bueeleueh-Greyfriars (F. C.), 

Edinburgh ...... ... 33 

Rev. Dr. Wells. Pollokshields, West Church, Glasgow. 34 

Rev. Dr. Henderson. Crieff. 34 

Rev. William Muir, Blairgowrie... 34 

Ilev. H. W. Bell, Moderator of the U. F. Presbytery, 

Aberdeen . 34 

Rev. Professor Marcus Dods. 34 

Rev. Dr. Robson at Alyth ... 24 

Rev. P. Carnegie Simpson in Rcufield Church, Glas¬ 
gow .. 24 

Advice From the Established Church of Scotland. 34 

United Free Church Conference at Inverness. 35 

Another Possible Claimant . 3G 

Roman Catholics.and Church of England Property... 30 

The Victorious Remnant . 30 

The Scottish Free Church Crisis—A Ballad o’ the Free 3G 































































































THE DECISION OF THE HOUSE OF LORDS. 


The Appeal Sustained by Five to Two===Full Text of 

the Judgments. 


The House of Lords on Monday, August 1, gave judgment in the Free Church Appeal—the litigation which com¬ 
menced in 1900 in connection with the union of the majority of the ministers and members of the Free Church of Scot¬ 
land with the United Presbyterian Church of Scotland. In that year the minority raised an action to determine their 
legal position in respect of the funds and property of the Free Church, which had been claimed by the majority. The 
Second Division of the Court of Session (consisting of Lords Kingsburgh, Young and Travner) in effect affirmed Lord 
Low’s decision, which had been reclaimed against, and pronounced a judgment adverse to the contentions of .the minor¬ 
ity, who then carried an appeal to the House of Lords. 

They submitted that the decision of the Court of Session should be reversed—(1), because the union.with the 
United Presbyterians was one which could not lawfully be entered into to any civil effect against the dissent of any por¬ 
tion of the members of the Free Church or its General Assembly desiring to continue the organized, existence of the 
Free Church as a distinct religious association; (2), because the proceedings of the majority which terminated in the 
union involved a departure upon essential points from the principles and-doctrines of the Free Church as constituted 
in 1S43; (3), because the United Free Church was associated under a constitution which did not recognize, accept and 
provide for maintaining principles which were fundamental to the Free Church; (4), because the Constitution of the 
United Free Church contained in gremio provisions for alteration upon the distinctive principles' and doctrines of the 
Church to an extent not contemplated by anything in the Constitution of the Free Church, and (5), because the appel¬ 
lants remaining associated under the forms of Presbyterianism maintained unimpaired and inviolate the whole principles 
and doctrines of the Free Church, and were lawfully entitled to participate in the property and funds devoted to that 


Church. 


The respondents, the United Free Church, met these contentions with the plea that as a body which maintained 
spiritual independence the Free Church, through a majority, had an inherent power to take the steps that culminated in 
the union, and that, therefore, the funds and property held in 1900 must belong to them. 

These were the questions in the main appeal, which appeared in the list of causes as the General Assembly jif the 
Free Church of Scotland v. Lord Overtoun and others. 


. A second appeal, known as Macalister and others, concerned the destination of the property of individual congre- 




5 


THE SCOTTISH FREE CHURCH CASE. 


It was a test case. Toward the close of last year the two appeals were argued before the Lord Chancellor, 
' •>.u Macnaghten, Lord Davey, Lord Shand, Lord Robertson and Lord Lindley. Lord Shand died not long after. 

Nothing more was heard of the case till the end of May, when the'official announcement was made that the ap- 
j. -vds would be reargued ' 

•‘he reargument occupied nine days in June. Lord James of Hereford took the place of Lord Shand, and the 
Lord Chief Justice (Lord Alverstone) came in as an additional judge. 

By five to two, their lordships reversed the judgment of the Court of Session in both appeals. 1 he majority con¬ 
sisted of the Lord Chancellor, Lord Davey, Lord James, Lord Robertson and Lord Alverstone, and the minority favor¬ 
able to the views of the United Free Church consisted, of Lotf Macnaghten and Lord Lindley. 

^ 


The Case Stated by the Glasgow Herald. 


It is only because the finding of the House 
of Lords had leaked out that its decision in 
the Free Church case will nor cause almost 
universal surprise in Scotland If any one of 
the four Court of Session judges who have 
pronounced upon this ease had differed front 
h>s brethren, a reversal of their judgment 
might have been anticipated But the four 
were absolutely unanimous; one, indeed (Lord 
Young), asserted that the Free Church en¬ 
joyed a larger liberty than that conditional 
right of altering its constitution which the 
law lords have denied to the church. They 
were all as one in regard to the merits of 
the case. That, in these circumstances, the 
law lords should reverse the decision of the 
lord ordinary, which was confirmed by the 
Inner House, is not unprecedented, but it is 
so amazing that a very close examination of 
their decision is imperatively demanded. Tt 
Is none the less imperative when it appears 
;bat, heads h.-'ng counted, the majority ol 
5 to 2 in the House of Lords in favor of the 
"Remnar.r" is more than counterbal¬ 
anced by the fact that four Senators 
of the College of Justice, including these 
two great intellects. Lords Young and 
Low, plus two law lords, make 4P 
a net majority of six in favor of the United 
Free Church To come to the point. It 
must strike every one, whatever his prepos¬ 
session may be, (hat the essential difference 
between the majority of the House of Lords 
and both houses of the Court of Session con¬ 
sists in the circumstance that the latter 
treated the property in dispute as the prop¬ 
erty of the Free Church at the moment of 
the union, whereas the five law lords re¬ 
garded it—and based their judgment on the 
supposition-that the property was held in 
trust for certain specific •.imposes, or rather 
under certain specific conditions Were 
not the five law lords with the possible ex¬ 
ception of Lord Davey. laboring under a de¬ 
lusion? There was no trust; there are no 
trust deeds of the kind assumed in the 
House of Lords to exist, As Lord Young 
put it, no such documents were placed be¬ 
fore the Court of Session, or alleged to be in 
existence. There was a trust, as there is 
at this moment, but it was constituted by 
the Free Church itself for the purpose of 
holding, legally, the property which it, as an 
unincorporated body, was incapable of hold- 


TUESDAY, AUGUST 2, 1904. 

ing. If the law lords are right, then, they 
must have founded upon a number of forms 
of bequest governing the expenditure of 
every penny of the church funds. No such 
form of bequest was produced in process, 
for the very good reason that there is noth¬ 
ing of the kind on which to build the fal¬ 
lacy which underlies their lordships’ find¬ 
ings. 

We have no choice but to pass by the Lord 
Chancellor’s elaborate argument oh the doc¬ 
trine of predestination and the tussle be¬ 
tween Calvinism and Arminianism. In fact, 
it was just as relevant as a disquisition on 
Bourignianism would have been. It had 
nothing to do with the ease, and it is safe to 
•say that if profession of the “bald, awful” 
form of Necessitarianism which Lord Hals- 
bury reads into the Confession is a condi¬ 
tion essential to the holding of Free Church 
property, then a “bald” Necessitarian will 
have a very plausible ground for disputing 
ownership with the select body which has 
now been awarded the titles. It was a mere 
whim of the Lord Chancellor’s to introduce 
this superfluous matter. What, then, shall 
be said about the handling of the true 
ground of action by the majority of the 
House of Lards? In a word, they differ from 
the Court of Session as to the “essential- 
ness” of the establishment principle. The 
Lord Chancellor, indeed, seems to say that 
every tenet of the Free Church of 1843 is 
essential, in the sense that, in order to hold 
the property in dispute, the members of the 
Free Church in 1900 must have agreed in 
regard to every point of doctrine and church 
government with the post-disruption church. 
But, like his brethren who supported his 
judgment, he treated the establishment prin¬ 
ciple in fact as essential By abandoning 
this principle, they contend, the Free Church 
lost its identity with the Church of the Dis¬ 
ruption. Well, on this head is it really nec¬ 
essary to do more than point out that’these 
four Englishmen and one Scotsman differed 
from the four Scotsmen who heard the case 
iu the Court of Session? That is a rude, 
perhaps an impertinent opposition. But con¬ 
sider the facts. The four Court of Session 
judges, familiar with the working of the 
Scottish ecclesiastical mind and the develop¬ 
ment of Scottish ecclesiastical institutions 


from their youth up, and well aware of the 
long political logomachy which turned upon 
th? repeated disestablishment resolutions 
passed by the Free Assembly, were unani¬ 
mously of opinion that the establishment 
principle was never so fundamental or essen J 
tial a tenet of the Free Church that, once 
it was made an open question, a breaen 
in the continuity of the church’s existence 
occurred. Their arguments are on record, 
and convinced the great majority of Scots¬ 
men, including most of those who. in the 
said political logomachy, had protested 
agginst the departure of the church from the 
first disruption position. Over against these 
arguments are now ranged, in the House of 
Lords’ judgments, a number of inferences 
from documents like Dr. Chalmer’s address, 
which were held to prove that the Free 
Church got its property on condition that 
it strove to all eternity, if need be, to have 
itself recognized as the true Church of 
Scotland Established.. Which of these two 
legal deductions from not very obscure facts 
is right? Our own opinion remains un¬ 
changed by the vast display of historical re¬ 
search made in the House of Lords yester¬ 
day. Lord Low had the root of the mat¬ 
ter in him when he said that in all the real¬ 
ly relevant documents the Claim, the Pro¬ 
test and the Acts of IS4‘> and 1851, it is snir*- 
itual independence alone that is put forward 
as essential, while recognition by the state 
is regarded as a matter which, however, im¬ 
portant, does not affect the “identity” of 
the church. It Is a pity, perhaps, that this 
preference for the judgment of the Court of 
Session has a look of pseudo-patriotism, but 
that connot be helped. It is an honest pref¬ 
erence, and we may look forward with confi¬ 
dence to- its vindication when the House 
of Lords is overwhelmed by the crop of ac¬ 
tions arising out of the ‘development’’ of 
English dissenting churches which their 
judgment directly invites, seeing that it con¬ 
firms in so crude a manner the Aikrnan- 
Craigdallie dictum that that fraction of a 
church which has made no progress since 
its inception may oust the progressive ma¬ 
jority from its seat and its property. 

There, however, the judgment of the House 
of Lords stands. It is final. The whole of 
the Umsuaeutg an<j buildings which the 















THE SCOTTISH FREE CHURCH CASE. 


7 


Free Church majority took with them into 
the United Free Church must pass into the 
hands of the body which is now recognized 
by the highest tribunal in the land as the 
authentic Free Church. We have no hesita¬ 
tion in saying that this is a positively mon¬ 
strous situation. The union is presumably 
indissoluble; dissolution is inconceivable. 
Even if the link were broken, it is evident 
that every man who came back to the Free 
Church would, as an essential condition of 
enjoying the use of any part of the property, 
have to forswear openmindedness about the 
Establishment principle, profess true-blue 
Calvinism, and one knows not what else. 
The question, then, resolves itself into one 
of compromise on very peculiar lines. It 
is unnecessary to say anything here about 
the spirit in which the subject of compro¬ 
mise should be approached, for we are well 
assured that the leaders on both sides are 


so alive to the gravity of the situation that 
they will absolutely ban recrimination. 
But given a disposition on either side to be 
amicable and divide the subjects in 
medico in a common-sense manner—we 
refuse to believe that the Free Church 
could dream of sticking to the whole—it is 
necessary to face the fact that legally the 
United Free Church cannot hold any of the 
property which the Free Church might con¬ 
ceivably be willing to hand over. Even if 
terms of the Union were altered so that only 
original Free Churchmen could enjoy the use 
of the funds brought in by the Free Church 
members, would not the same disability lie 
upon these original Free Churchmen so long 
as they did not abjure their Disestablishment 
heresy and their advanced views on Freewill 
and Necessity? Is the Free Church, again, 
legally capable of divesting itself of any part 
of the funds now vested in it by the House 


of Lords judgment? As at present advlseu 
we can see no legal exit from the impasse. 
If a division is made—on terms, say. some¬ 
what more favorable to t' > “Remnant” than 
those of the Rainy proposition—then it will 
probably have to be on the understanding 
that no further legal action will be taken in 
dispute of the right of the United Free 
Church to hold the gift of their estranged 
brethren. It is impossible, however, to go 
further into this issue at the moment. What 
we are concerned about is the spirit in which 
the House of ’ "~ds judgment is to be ac¬ 
cepted, and we found a confident hope upon 
the Christian character and calling of the 
parties to the presumed compromise, further 
upon Lord James’ earnest adjuration, and 
finally upon the declaration of last Free As¬ 
sembly that the “spoils” would be devoted 
somehow' or other to the Christian purposes 
for which they w'ere intended. 


. 

i v \ ... ’ ' * x 

« • V *r I * f 4 * ■- Jt t * 

The Case in the House of Lords. 

THE LORD CHANCELLOR ON BREACH OF TRUST. 


The Lord Chancellor said: My Lords, in 
this case the pursuers complain of a breach 
of trust, the trust being for the behoof of 
the Free Church of Scotland, and the breach 
of trust alleged being the use of certain 
property being, as alleged, no longer used 
for the behoof of the Free Church of Scot¬ 
land, but for the maintenance and support of 
another and a different body—namely, the 
United Free Church. That body was formed 
in 1900 and consisted of a certain number of 
those who professed to belong to the Free 
Church of Scotland and others w'ho, up to the 
time of the union, had belonged to the United 
Presbyterian body. They purported to unite 
and to exclude from their communion, or at 
all events from all participation in tbeir or¬ 
ganization, those who refused to unite in the 
new body, and have, of course, used the 
funds, of which they claim to be the bene¬ 
ficial owners, for the use of the new' united 
body. This is the breach of trust complained 
of and the question is whether that com¬ 
plaint is well founded. Now, in one sense 
there can be no doubt what was the original 
purpose of the trust. It was for the mainte¬ 
nance and support of the Free Church of 
Scotland. What w'as the Free Church of 
Scotland in 1843 can hardly admit of doubt. 
The reasons of those who then separated 
themselves from the Established Church of 
Scotland, which they then gave for their 
separation, are recorded with distinctness 
and precision and I do not think there can 
be any doubt of the principles and faith of 
those who came out from the Church of Scot¬ 
land and described themselves as the Free 
Church of Scotland. Their name was signifi¬ 
cant. They claimed to be still the Church of 
Scotland, but freed from the interference by 
the state in matters spiritual. It was by 
the persons thus describing themselves that 
funds in dispute were given and until the 
union in 1900 with the other body w'e do not 
hear of any difficulty having arisen in the 
administration of the trust. Now, howeve’, I 
the new body lias established a new organi- I 
zation. It is alleged to profess new doc¬ 
trines and its identity with the Free 


Church, for whose behoof the property w T as 
settled, is disputed, and it accordingly be¬ 
comes necessary to consider in w'hat con¬ 
sists the identity of the body designated by 
the donors of the fund as the Free Church 
of Scotland. Speaking generally, one w'ould 
say that the identity of a religious com¬ 
munity, described as a church, must consist 
in the unity of its doctrines. Its creeds, con¬ 
fessions, formularies, and so forth are ap¬ 
parently intended to ensure the unity of the 
faith which its adherents profess, and cer¬ 
tainly among all Christian churches the es¬ 
sential idea of a creed, confession of faith, 
appears to be the public acknowledgment of 
such and such religious view's as the bond 
of union which binds them together as one 
Christian community. If this be so, there 
is no lack of material from which to deduce 
the identity of the Free Church of Scot¬ 
land. Its founders left their claim, declara¬ 
tion and protest to stand for all time as a 
clear exposition both of their reasons for 
leaving the Church of Scotland, when they 
did leave it, and as a profession of their faith 
as the true Church of Scotland, though sep¬ 
arated from the Establishment, which, in 
their view, was itself heretical from its 
submission to the temporal power in what 
tney regarded as exclusively spiritual. Now, 
in the controversy which has arisen it is to 
be remembered that a court of law has noth¬ 
ing to do with the soundness or unsoundness 
of a particular doctrine, assuming there is 
nothing unlawful in the views held—a ques¬ 
tion which, of course, does not arise here. 
A court has simply to ascertain what was 
the original purpose of the trust. My lords, 
I do not think w'e have any right to speculate 
as to w'hat is, or is not, important in the 
views held. The question is what w'ere, in 
fact, the view's held, and what the founders 
of the trust thought important. Fortunate¬ 
ly, your lordships have the authority of most 
learned judges—their decisions now reach¬ 
ing back for something like a century— 
w'hich I shall quote somewhat copiously as 
principles upon which such questions as are 
now in debate should be determined. Com¬ 


menting upon Lord Eldon, Lord Moncreiff, in 
Scotland, and Sir William Cusack Smith, in 
Ireland, have expressed themselves on simi¬ 
lar questions in a manner which I think can 
be well applied to the matter now in de¬ 
bate. .. .. A 

The Craigtlallie-Aikman Case. 

Craigdallie and others, appellants; Aikman 
and others, respondents (Scottish Seced- 
ers, dissenters). 1 Dow, 16. 

Lord Eldon: With respect to the doctrine 
of the English law on.this subject, if prop¬ 
erty was given in trust for A, B, C, etc., 
forming congregation for religious wor¬ 
ship, if the instrument provided for the case 
of a schism, then the court w'ould act upon 
it; but if there was no such provision in 
the instrument, and the congregation nap- 
pened to divide, he did not find that the law 
of England would execute the trust for a 
religious society at the expense of a forfei¬ 
ture of their property by the cestui que trust 
for adhering to the opinions and principles in 
which the congregation had originally united. 
He found no case which authorized him to 
say that the court w'ould enforce such a 
trust, but for those who adhered to the 
original principles of the society, but mere¬ 
ly with a reference to the majority, and 
much less if those who changed their opin¬ 
ions, instead of being a majority, did not 
form one in ten of those who had originally 
contributed, which w r as the principal here. He 
had met w’ith no case that would enable him 
to say that the adherents to the original 
opinions should, under such circumstances, 
for that adherence forfeit their rights. If it 
were distinctly intended that the synod 
should direct the use of the property, that 
ought to have been matter of contract, and 
then the court might act upon it; but there 
must be evidence of such a contract and 
here he could find none. He proposed that 
the cause should he sent back, with tv/o 
findings of this nature— (1) thSt the ground 
appeared to have been purchased and the 
house built for a society united, and propos¬ 
ing to continue united, in religious opinion; 
(2), that it did not, in point of fact, appear 














8 


THE SCOTTISH FREE CHURCH CASE 


how this property was to be applied in case 
the society should happen tc differ and sep¬ 
arate. 

Tlie Crnisie-Mnrstin 11 Case. 

Craigie v. Marshall (12 Young. Tennant. 

Fraser and Murray, 560). 

Lord Moncreiff (quoting Lord Eldon in 
Aikrnan v. Craigdallie): If it were distinctly 
intended that the synod should direct the 
use pf theaproperty,: that ought to have been 
matter oLccntract. and then the eourt might 
act' Upon it. but there must be evidence of 
such a contract, and here he could find none. 
He therefore, premised to remit the cause 
with two findings Accordingly, it was re¬ 
mitted with very precise findings, importing 
that it appeared (sufficiently as matter of fact 
that the ground was purchased and was to be 
used for religious worship by a number of 
persons agreeing at the time in their relig¬ 
ious opinions and persuasions, and therefore 
intending to continue ir. communion with 
each other, and that the society had acceded 
to a body called the Associate Synod, but 
that it did. not appear as matte- of fact for 
what purpose it was intended at the time 
such purchase and erections were made, or 
at the time such accession took place, that 
♦ he ground and buildings should be used, and 
enjoyed in case the whole body of persons 
using and enjoying the same should change 
their rcligiour principles and persuasions, 
or if in consequence of the adherence of some 
such persons to their original religious prin¬ 
ciples and persuasions, and the non-adher¬ 
ence of others thereto, such persons should 
"ease to agree in their original principles 
and persuasions, and. should cease to con¬ 
tinue in communion with each other, and 
should cease, either as tc the whole body 
or as to any part of the members, etc., to 
adhere to the Associate Synod. With these 
findings the cause was remitted for further 
consideration. There is no ambiguity in the 
principles on which Lord Eldon made this 
remit. Under the remit the court ordered a 
condesctnderce with a view to the ascertain¬ 
ment of the matters of fact, whether there 
was a real difference in the religious prin¬ 
ciples or not and afterward pronounced an 
interlocutor, the result of which was that 
the court found that the pursuers have failed 
to condescend upon any acts done or opin¬ 
ions professed by the Associate Synod, or by 
the defenders, from which this court, as far 
as they are capable of understanding the 
subject, can infer, much less find that the 
defenders have deviated from the original 
principles and standards of the Associate 
Presbytery and Synod, further find that the 
pursuers have failed to render intelligible 
to the court on what ground it is that they 
aver that there does exist, at this moment, 
any real difference between their principles 
and those of the defenders, etc.; and, there¬ 
fore, found it unnecessary to enter into the 
inquiries whichxhad been directed by the 
House of Lords under the supposition that 
the- defenders had departed from the origi¬ 
nal standards and principles of the associa¬ 
tion. 

The Dill v. AVatson Case. 

Dili v. Watson (2 Joness Rep. 91, Court of 

Exchequer, Ireland, 1836). 

Smith, Baron, speaking on the same sub¬ 
ject sa.vs: 

“Again I do not conceive that I appeal 
from (he word of God to that of man by 
proclaiming or attesting by my signature 
that 1 concur in the interpretation given by 
a numerous body of my fellow Christians to 
certain passages of Scripture. They agree 


with me. I agree with them in construction 
and consequent creed, but neither take their 
belief upon the authority of those others. 
Both draw their faith from the Bible as its 
common source. Both consider the Bible as 
containing the only rule of, and furnishing 
the only unerring guide to a true faith, each 
with God’s assistance, and the subordinate 
and pious aid of human instruction, inter¬ 
prets as well as man’s infirmity will permit. 
Both coincide in the same Interpretation. 
That interpretation regulates their faith, and 
aii who thus coincide become members of 
the same religion; and, thirdly, we do not 
coerce our neighbor by calling for bis signa¬ 
ture to our profession or articles of faith. 
We leave him free to adopt, or to repudiate, 
that faith according as his reason, his con¬ 
science, and the grace of God may direct 
him. Wc but say to him: If you agree with 
us affix your signature to certain articles, or 
in some way notify your recognition of their 
truth, or, if you disagree, withhold such 
signature or declaration, and we may say 
of him, in the former case, that he is, and 
in the latter case that he is not. of our 
religion. We do not compel him to hold our 
faith; we but ask him to inform us by cer¬ 
tain acts whether he does hold it or does not. 
and we ask this only if he claim to be en¬ 
rolled as one of our body and to be in re¬ 
ligious communion with us. In the absence 
of such a* test our Establishment would not 
be a rock cemented into solidity by harmoni¬ 
ous uniformity of opinion; it would he a 
mere incongruous heap of, as it were, grains 
of sand, thrown together without being 
united, each of these intellectual and isolat¬ 
ed grains differing from every other, and 
the whole forming a but nominally united 
while really unconnected mass, fraught with 
nothing but internal dissimilitude aDd mu¬ 
tual and reciprocal contradiction and dis¬ 
sension. 'Hie dextrorsum abit ilie sinistros- 
sum.’ This indeed I should bold to he. in 
the language of a late prelate, ‘a church 
without a religion.’ ” 

Tlie Establishment Principle. 

The principles for decision thus pro¬ 
pounded have been recognized and acted 
upon ever since, and it would seem that it 
may he laid down that no question of the 
majority of persons can affect the question, 
but thp original purposes of the trust must 
he the guide. Under these circumstances it 
would seem to reduce the question in dis¬ 
pute to an examination of the evidence as 
to what is the difference between them, -.f 
any. and if that difference does or does not 
accord with the original purpose of the' 
tiust. But in examining this question one 
has to bear in mind not what we or any 
other court might think of the importance 
of the difference, but what the donors of the 
trust fund thought about it, or what we are 
constrained to infer would be their view of 
it if it were possible to consult them. The 
first point in dispute Is very plainly set forth 
by the pursuers in the thirteenth conde¬ 
scendence. After pointing out in the tenth 
condescendence that the Free Church of 
Scotland was a voluntary association, or body 
of Christians associated together under a 
definite contract, involving the maintenance 
of definite principles, the condescendence 
proceeds thus: 

“Condescendence 13. As already stated, 
one of the essential principles recognized 
by those who associated themselves to form 
the Free Church of Scotland, emphasized 
by their leaders in their utterances at the 
time of the disruption and embodied in the 


contract of association or constitution of 
said church as hereinbefore defined, is 'hat 
it is the duty of the civil magistrate to 
maintain and support an establishment of 
religion in accordance with God’s Holy Word 
and the said church as originally associated 
recognized and maintained the propriety 
and advantage of the endowment of pastoral 
charges and and the promotion of religious 
education by the state. The principle of the 
duty of the recognition of religion by the 
State, by means of the establishment, 
and, where possible, endowment of a 
national church was, moreover, implicit¬ 
ly involved in the position claimed by 
the Free Church as being the Church of 
Scotland freed merely from the control of 
the civil courts in matters spiritual The 
said principle formed an essential principle 
of the Free Church of Scotland, and- its 
maintenance was‘one of the main reasons 
for the formation of that church as a sep¬ 
arate association or body of Christ'ans, dis¬ 
tinct and apart from those who professed 
themselves to be “Voluntaries." There were 
several such associations of seceders from 
the Established Church of Scotland iD ex¬ 
istence at the tir e of the Disruption of 
1843, holding views practically identical with 
those of the founders of the Free Church in 
matters of doctrine and as to the encroach¬ 
ments of the civil courts, but differing from 
them as regarded the duty abovd referred 
to. In regard, to this, these bodies were 
“Voluntaries" in the sense of holding such 
action of the state to be unlawful. The 
foundation of the Free Church was a pro¬ 
test against the position of such churches 
on the one hand, just as it was against the 
encroachments of the civil power on the 
other. In reply to this, the defenders say 
the Confession of Faith does not contain, 
or set forth, the said alleged principle in 
respect to the rights and duty of the civil 
magistrate in regard 'o establishments ot 
religion as an article of faith, or doc.rine, 
or belief. T t teaches that nations and their 
rulers are bound to own the authority of 
Christian truth, but the Free Church has 
always held that the teach’-; of the Con¬ 
fession in this matter is to he read and un¬ 
derstood In harmony with the principle 
(which the Confession also teaches) tba' the 
Christian Church has an independent gov¬ 
ernment and jurisdiction in matters spir¬ 
itual distinct from the civil magistrate, and 
also in harmony with the view that the 
Confession is not to be accepted as favoring 
intolerance or persecution or interfering 
with liberty of conscience. The alleged 
principle as to the right and duty of the 
civil magistrate to maintain and support an 
establishment of religion has always been 
in the Free Church an open question, in re¬ 
gard to which liberty of opinion lias been 
permitted and exercised, and as to which 
wide differences of opinion have all along 
prevailed. 

In Favor of Pursuer*. 

These are the two contentions upon which 
the first part of the controversy depends, my 
lords. I cannot doubt that upon this there 
is an overwhelming body of evidence in favor 
of the pursuers. Indeed, two of the learned 
judges have stated in express terms that 
originally the Free Church did profess what 
has been conveniently called the Establish¬ 
ment principle, though, for reasons which 
will be dealt with hereafter, they do not 
think that those who now represent the Free 
Church are bound by that original opinion. 
My lords. I am unable to understand by what 
test I am to ascertain what the donor of a 







T HE SCOTTISH FREE CHURCH CASE. 


9 


fund has made essential to his gift, unless it 
Is by what he has said or written; and when 
I find that the Free Church invited support 
by the circulation of Dr. Chalmers’ address, 
what can I say but that he expresses views 
of the church that he represents? 

“By giving up your connection with the 
state, and thus separating yourselves from 
the worldly advantages of such a connection, 
you may be said to have withstood a great 
temptation to sin in one form, but such is 
the deceitfulness of the human heart that, 
without the heedfulness and the humility 
which apostles of old so pressed upon the 
early converts, there is danger of being car¬ 
ried aw r ay by temptation in another form— 
and temptation, too, to the very same sin. 
Rather than be seduced from oue of your 
greatest principles, you have given up one 
earthly dependence. Rut let principle have 
its perfect work, and have a care lest you 
be tempted from even the best of your prin¬ 
ciples by the promises and the allurements 
of another earthly dependence. Rather than 
compromise the authority of Christ over the 
affairs of His own church, you have forfeited 
the countenance of men in power; that is, 
who have the power of this world’s author¬ 
ity on their side. Beware of compromising 
another of your doctrines or articles of faith, 
and in the defense of which the Church of 
Scotland did lately signalize herself over 
the authority of Christ over the Command¬ 
ments that they shall be called least in the 
Kingdom of Heaven. The men who stand 
opposed to us on this second, or as many 
choose to term it. this secondary, question, 
might with all the hay and stubble and wood 
of this, and it may be of other, errors be re¬ 
posing on the like precious foundation with 
ourselves. They might be men with whom we 
differ, and yet with whom we can agree- to 
differ. They might be coadjutors in the 
great work of evangelizing the people of our 
land—brethren with whom you can hold 
sweet and profitable counsel on the capita 
fidei or weightier matters of the lav/, having 
one faith and one Lord and one baptism. 
But we shall not even, for their friendship, 
violate the entireness of our principles or 
make surrender of the very least of them. 
It is not for those ministers of Christ whom 
I am now addressing and who on the altar 
of principle have just laid down their all— 
thus quitting, and for the sake of one prin¬ 
ciple, the friendship of men who have the 
power of office; it is net for them to give up 
another principle for the sake of courting 
the friendship of men who have the power 
of numbers. We must not thus transfer our¬ 
selves from one earthly dependence to an¬ 
other. We have no other dependence than 
God. We acknowledge the authority, and 
will submit to the influence of no other 
guide than His eternal and unalterable truth, 
as seen in the light of our own consciences. 
To be more plain, let me be more particular. 
The voluntaries we hold by the duty of gov¬ 
ernment to give of their resources and their 
means for the maintenance of a gospel min¬ 
istry in the land, and. we pray that their 
eyes may be opened so as that they may 
learn how to acquit themselves as the pro¬ 
tectors of the church, and not as its cor¬ 
rupters or its tyrants. We pray that the 
sin of Uzziah. into which they have fallen, 
may be forgiven them, and that those days 
of light and olessedness may speedily arrive 
when kings shall be the nursing fathers and 
queens the nursing mothers of our Zion. 
In a word, we hold that every part and every 
function of a commonwealth should be leav¬ 
ened with Christianity, and that every func¬ 


tionary from the highest to the lowest 
should, in their respective spheres, do all 
that lies in them to countenance and uphold 

, V 

it; that is to say, though we quit the estab¬ 
lishment, we go out on the establishment 
principle. Wo quit a vitiated establishment, 
but would rejoice on returning to a pure 
one. To express it otherwise, we are the 
advocates for a national recognition and na¬ 
tional support of religion, and we are not 
voluntaries. 

Dr. Chalmers’ Authority. 

It would probably be admitted by all that 
the authority of Dr. Chalmers, as an ex¬ 
ponent of the views of the Free Church, would 
hardly be overrated; but it was not his per- j 
sonal view merely. The words were ad¬ 
dressed by him as Moderator, and were 
adopted unanimously and directed to be cir¬ 
culated by the Assembly. My lords, I am 
reluctant to render longer what 1 have to 
say by literal quotations from authoritative 
declarations of the Free Church, but though 
I summarize I am actually using the language 
which originally, and for a long period af¬ 
terward, those who spoke on behalf of the 
Free Church have said and written. The 
Free Church have said and written: 

“The Free Church has ever highly valued | 
her connection with the state. 

“Firmly asserts the right and duty of the 
civil magistrate to maintain and support an 
establishment of religion in accordance with 
God’s word. 

“They reserve to themselves and their suc¬ 
cessors to strive by all lawful means to se¬ 
cure the performance of this duty. 

“The state was bound to establish and en¬ 
dow the church. 

"The Free Church has not in the least de¬ 
gree altered its views respecting the lawful¬ 
ness and the desirableness of a right connec¬ 
tion between church and state. 

“History and experience have convinced us 
(the Free Church) that there is a form of 
alliance which is at once practicable and 
agreeable to Scripture and highly beneficial.’' 

My lords, I cannot doubt that each of the 
utterances I have quoted are important and, 
to my mind, conclusive evidence that origin¬ 
ally at all events the views of the founders 
of the trust were in favor of the establish¬ 
ment principle. The question whether they 
were fundamental or susceptible of beiug 
changed, demands a separate treatment, 
which, as it is applicable to both questions 
in debate, must be reserved for' the present. 
Now the views of the United Presbyterian 
Church cannot bo more definitely or more 
shortly stated than ill their own language, 
authoritatively stated by themselves, and be¬ 
fore their union with the Free Church: 

“It is not competent,” they say, “to the 
civil magistrate to give legislative sanction 
to any creed in the way of setting up a civil 
establishment of religion, nor is it either his 
province to provide for the expense of the 
ministration of religion out of the national 
resources. It is Jesus Christ, as sole King 
and Head of His Church, who has enjoined 
upon His people to provide for maintaining 
and extending it by free-will offerings, that 
this being the ordinance of Christ it ex¬ 
cludes state aid for these purposes, and that 
adherence to it is the true safeguard of the 
church’s independence.” 

In my view, what follows does not at all 
qualify this passage, but in fairness it ought 
to be added: 

“Moreover, though uniformity of opinion 
with respect to civil establishments of re¬ 
ligion is not a term of communion in the 
United Presbyterian Church, yet the views 
on this subject held and universally acted 


upon are supposed to establish identity of 
religious belief, the one asserting the right 
and duty to maintain and support an estab¬ 
lishment of religion, the other asserting that 
Christ’s ordinance excludes stale aid.” 

Each of them, therefore, treats the ques¬ 
tion as one of religious belief and obligation, 
and not one from which religious duties may 
be excluded. 

Tlie Calviiilstic r, t:il J rninian Doc- 

tri nes. 

The second question in debate is the differ¬ 
ence between the two bodies as to the two 
doctrines known as the Calviiiistlc and the 
Arminian doctrine of predestination. 1 use 
th-se two phrases subject to more ample 
exposition hereafter, in order to summarize 
what I have to say as preliminary to the 
discussion of the subject itself. I regret 
very much that wc have not any opinion 
from the learned judges whose judgment 
we are called upon to review. I am afraid, 
speaking for myself, I do not think it i3 
competent to me to avoid dealing with it. 
It is included in the allegation of a depart¬ 
ure lrom the doctrines which is complained 
of in the summons, and it has been argued 
before your lordships with great learning 
and ability. One observation made by the 
learned counsel I entirely agree to—name¬ 
ly, that in discussing this subject one can¬ 
not ignore the contemporaneous theological 
discussion at the time of the Confession of 
Faith was compiled. Now, the doctrine in 
dispute was the subject of a copious amount 
of literature all through the seventeenth 
century. Looking, then, at the history of 
the particular dispute which is brought into 
debate, it cannot be said that the language 
of the Confession of Faith was lightly drawn 
or arrived at without long debate and delib¬ 
eration. Indeed, it may be said of the West¬ 
minster Confession as a w'hole it was com¬ 
posed with a deliberate and careful scrutiny, 
which may be regarded as hardly equaled in 
any theological discussion, and though coun¬ 
cils of the church have lasted longer, if one 
regards the composition of the assembly 
itself, the original parties to the dis¬ 
cussion, the presentation of its diffi¬ 
cult portions to Parliament, the adop¬ 
tion of it by Parliament, and after¬ 
ward by the Church of Scotland, give these 
things an overwhelming sanction to it, 
and, at all events, to its original meaning 
by those w r ho were content to accept it. as 
a test of the unity of their religious belief. 
If this observation is true and applicable to 
the confession of faith as a whole (the mi¬ 
nute report of its deliberations has been de¬ 
ciphered by the distinguished director and 
principal librarian of the British Museum), 
the particular doctrine debated, as part of 
the code of belief which the Free Church 
adopted in 1843, and which it is alleged the 
United Free Church has abandoned, can 
hardly be said to be one which any Christ¬ 
ian church could regard as a matter of in¬ 
difference. It divided the Dutch Reformed 
Church at the beginning of the seventeenth 
century. It proved the subject of debate 
at The Hague in 1511, and at Delft in 1613. 
An edict of the States of Holland sought to 
put an end to the controversy, but in vain; 
and. finally, in 1619, ten years after the death 
of Arminius, or Kermanson, as was his real 
name, the Arminian heresy, as it was de¬ 
scribed, was publicly condemned. Its pro¬ 
fessors were denounced as liars and de¬ 
ceivers. and those who participated in it 
were deprived of their civil rights unless 
they retracted. James the First is said to 












10 


THE SCOTTISH FREE CHURCH CASE. 


havo procured the exile of Conrad Vostrus, 
one of the protagonists of the Arminian doc¬ 
trines, and afterward he wrote a pamphlet 
against him, and argued that he ought to be 
put to death for his unchristian doctrines; 
while, on the other hand, the Council of Con¬ 
stantinople, in 1642. and the Council of 
Jerusalem, in 1672, pronounced llie following 
opinions, treating of what they describe as 
the Calvanistic doctrine; 

Council of Constantinople, 1642, cap. 3:— 
“Deuni facit iriiquissimum tyrannica potes- 
tate mentcm, aiens rum sola sua voluntate 
alios praedostinare ad gloriaiu, alios in 
poeninam mittere, nulla operum- habiia ra¬ 
tion'd, quo quid xnagis itnpium proferri poe- 
sit?” 

Synod of .lorusaiem. 1672, extract from cap. 
3: "Scd et hominum ita simpliciter ac sine 
causa dajnnatorqni auptorem statue re divi- 
nam voluntateni insanie quanta? Quae ma¬ 
jor deo ealurrinia inferatur? Quanta in su- 
prermuii liumen injuria! Quanta, blasphemie! 
Quippe intentatorem malorum non esse deum 
et omnium ex aequo salutcm voile ecu apud 
qtterq.personal uni accept io nulla est cognos- 
cimus, et his qui pravis voluntatis suae 
moribus ac secundum impoenitens cor sc 
vasa in contumeliam effeeere danmai ionem 
juste decerni eonnitemur, ' Etcrnie aut.em 
punitionis immanitatis duritiae et iuhumun- 
itatia nusquam dicimus austorem esse deum 
super uno pccc&tore poenteuliam agente 
esse in coelo gaudium afferentejn- Absit a 
nobis ita cogitare necdum credere quatndiu 
nostri compotes sumus iaimo vero talia 
dicentes ac sentientes anathemaii sompi- 
terno subjicimus el cunctis infidelibus po- 
jores agnoscimus.” 

The Confession of Faith. 

It was in this state of tlie controversy 
agitating the Christian Church throughout 
the world that the Confession of Faith was 
adopted by the Church of Scotland on the 
27th of August, 1647, and the Approval aud 
adoption of it was made in a form which 
wos intended to. prevent cavil as to its being 
agreed upon without objection or doubt. It 
recites that the Confession was twice pub¬ 
licly read over, examined, and considered, 
that copies were printed, that it might be 
sedulously perused by all members of the 
Assembly, unto whom frequent intimation 
was publicly made to put in their objections 
and doubts, if they had any, an! the said 
Confession being upon dim examination 
thereof found by the Assembly, to be mosi 
agreeable to the Word of Cod, and in noth¬ 
ing contrary to the received doctrines, wor¬ 
ship, discipline, and government of this 
kirk, it proceeds to adopt it as u Confession 
of Faitli for the three kirks of God in i he 
three kingdoms My lords, l think, it is 
only necessary to put in juxtaposition the 
language of the Confession of Faith itself 
ant) statement of doctrine set forth by one 
component part of the supposed united body 
united in one faith and doctrine. The con¬ 
fession of Faith, Chapter 3 ef God’s Eternal 
Decree: 

“III. By the decree of God for the manm 
festation of His glory, some men and angels 
are predestinated iiHp everlasting life and 
others foreordained tc everlasting death, 
IV. These angels and men thus predesti¬ 
nated and foreordained are particularly and 
unchangeably designed, and their numocr is 
so ccriain and definite that it cannot be 
either increased or diminished." 

Now, then, for the act declaratory audit 
the Confession of Faith, made 26ih May, 
itsu. 

“That this church also holds that till who 


hear the gospel are warranted and require! 
to believe in the saving of their souls, and 
that iu the ease of such as do not believe 
but perish in their sins the issue is due 
to their own rejection of the gospei call. 
That this church does not teach, and does 
not regard the confession as teaching, the 
foreordination of men to death irrespective 
of their own sin.” 

It has been argued with great ingenuity that, 
inasmuch as the doctrine of predestination, 
as treated of in the Scriptures, is a mys¬ 
tery, and that various opinions have been 
held iu respect of it, it cannot be made a test 
doctrine, since another doctrine may be held 
with it, not to human intelligence recon¬ 
cilable with it, but equally derived from, and 
established by. Scriptural authority. If the 
Scottish Church, or the Westminster Con¬ 
fession as. one of its declarations of doctrine, 
had simply declared that predestination was 
one of its doctrines there might he something 
in the argument, but the argument ignores 
the fact that the Westminster Confession 
purports to explain, and does explain, in lan ¬ 
guage which does not admit' of' doubt what 
is meant. Each party well knew what they 
meant, ft is not a guestiou of metaphysical 
subtleties or ambiguous language. Each 
meant to exclude and denounce the doctrine 
of the other. I am therefore led to the 
conclusion that upon this second question the 
appellants are entitled to succeed. 

The Itighi to l hn <»««> Pm lrini'*. 

But, ray lords, another question is raised, 
which in one sense as affecting the law of 
trusts and their administration, is more im¬ 
portant than the abstract importance of either. 
The Dean of Faculty boldly argued for the 
inherent power of every Christian church to 
change its doctrines, and Lord Young has 
based his judgment upon this proposition. 
M> lords, apart from some mysterious and 
subtle meaning to be attached to the word 
“church,” and understanding it to mean an 
associated body of Christian believers, J do 
not suppose that anybody will dispute the 
right of any man, or any collection of men. 
to change their religious beliefs according 
to their own conscience. But when men sub¬ 
scribe money for a. particular object, and 
leave it behind them for the promotion of 
that object, their successors have no right 
to change the object endowed. In this case 
il is suggested that terms of what is called 
the Barrier Act suggest such license to 
change. 1 am not able to concur iu such 
an inference, It is obvious that, dealing 
with such a subject as fprmularies, . books 
of religious instruction, and the like, many 
things might he dope, written and taught 
which might touch doctrine, and for the pur¬ 
pose of preventing any alteration in doctrine 
the precautions insisted upon by the Barrier 
Act were thought necessary to prevent and 
render impossible any departure from tire 
orthodox standards. It provides that “be¬ 
fore any CJonera] Assembly of the church 
shall pass any acts, which are to be binding 
rules and constitutions to the church, the 
same acts be lirst proposed as overtures to 
the Assembly.” Many things might be pro¬ 
posed which, as “binding rules and constitu¬ 
tions, might touch doctrine, or worship, of 
discipline, or government: but that the Church 
of Scotland in 1607 might change its faith, 
or permit it to be changed, is a suggestion 
whch to one acquainted with its history 
cither then or even a very long time after, 
is not very plapsihle. It is only just to 
Lord Young to say that he adds: 

“I desire to say that there is, in my 
opinion, no rule of law to prevent a dissent¬ 
ing church from abandoning a religious doer 


trine of principle, however essential and 
fundamental, or from returning to it again 
with or without qualification or modification. 
Whether or not a property title is such that 
a forfeiture of property will follow such 
abandonment or return is another matter-" 

Bui that is the whole question now befor ; 
your lordships, and as it appears to me 
there is nothing in calling an associated 
body a church that exempts it from the 
legal obligations of insisting that money 
given for one purpose shall not be devoted 
to another. Any other view, ir appears to 
me. would be fatal to the existence of every 
non-conformist body throughout the country 
Bui there is another and a further group-.! 
upon which I think the appellants are enti¬ 
tled to succeed, and that is that the so-called 
union is not really a union of religious be¬ 
lief at all. The united body has united in 
its organizations. It has established various 
administrative arrangements, has declared 
its authority as the United Free Church, and 
in that name was absorbed in the various 
bodies of the United Presbyterians and the 
Free Church as originally constituted. But 
has il agreed with the doctrines of either of 
them, and if so. what is it that has given 
way? My lords 1 am bound to say that after 
the most careful examinations of the various 
documents submitted to us I cannot trace the 
least evidence of either of them having aban¬ 
doned 'heir original views. It is not the 
case of two associated bodies of Christians 
in complete harmony as to their doctrine or 
to share their funds, but two bodies each 
agreeing to keep their separate religious 
views where they differed, agreeing to make 
their formularies so elastic as to permit those 
who accept them according as their respec¬ 
tive consciences will permit. Assuming, as 
1 do, that there are differences of belief 
between them, differences are not got rid of 
by their agreeing to say nothing, about them 
nor are these essentially diverse views 
avoided by selecting so elastic a formulary 
as can be accepted by people who differ, 
and say that they claim their liberty to re¬ 
tain their differences while purporting to join 
in one Christian church. It becomes but a 
colorable union, and no trust fund devotol 
to one form of faith can be shared by an¬ 
other communion simply because they say in 
effect there are some parts of this or 
that confession which we will agree not |o 
discuss, and we will make our formularies 
such that either of us can accept it. Such an 
agreement would not, in my view, constitute 
a church at all, or. to use Sir William 
Smith’s phrase, a church without a religion. 
Its formularies would be designed not to b? 
a confession of faith, but a concealment of 
such part of the faith as constituted au im¬ 
pediment to the union. J am disposed to 
quote one passage from what was said by 
Dr William Wilson from the moderator’s 
chair in 1866, and which ! find in A. Taylor 
Innes’ most excellent treatise on the law of 
creeds in Scotland. Speaking of the freedom 
of the church as to confessions of faith, he 
says; 

“We art- not at liberty to hold forth a con¬ 
fession in which we do not believe, for, in 
such a case the church is absolutely without 
a confession, it. ceases to be either a bond 
of union or a public testimony. It is lawful 
for the church to revise her c-oufession and 
adjust it to her present attainments and 
exigencies. It is lawful for her altogether 
to dispense with a confession, which confes¬ 
sion, if indeed, without one, any organiza¬ 
tion were possible, but to retain a ponies- 












11 


THE SCOTTISH FREE CHURCH CASE. 


sion which has ceased to be believed can 
never be lawful.” 

He is speaking, of course, of the Christian 
conscience, and, as he says at an earlier part 
of his discourse, that “when the church has 
arrived at the conclusion that its confession 
must be altered, the time has come for us 
then to frame a new bond of union with each 
other, a new testimony to the world. This 
would certainly not be done by making for¬ 
malities ambiguous or elastic, or authoriz¬ 
ing Its votaries to put different meanings 
upon a set of words, the function of which 
is intended to be a test of the unity of their 
faith. That this is the principle upon which 
the so-called union has been arrived at is 


proved by the declaration of the united 
churches, in which they claim, in effect, to 
retain their own separate views, either in 
the United Presbyterian or in the Free 
Church, or in either of the bodies which 
originally composed the united body which 
afterward became the United Free Church- 
They say this: 

“1. The Various matters of agreement be¬ 
tween the churches with a view to union are 
accepted and enacted without prejudice to 
the inherent liberty of the United Church as 
a church of Christ to determine and regu¬ 
late its own constitution and laws as duty 
may require in dependence on the grace of 
God and under the guidance of Hjs Word. 




“3. As this union takes place on the foot¬ 
ing of maintaining the liberty of judgment 
apd action heretofore recognized in either of 
the churches uniting, so in particular it is 
j hereby declared that members of both 
j churches and also of all churches which in 
time past have united with either of them, 
j shall have full right, as soon as they see 
cause, to assert and maintain the views of 
truth and duty which they had liberty to 
maintain in the said churches.” 

For these reasons I think the judgment 
ought to be reversed, and I so move, your 
J lordships; but I cannot conclude without ex¬ 
pressing how much we are indebted to learned 
counsel of both sides for their most able and 
learned argument. 


of the Case. 


Lord Macnaghten’s View 


Lord Macnaglnen said My Lords, 1 am 
unable to agree in the conclusion at which 
jour lordships have arrived I do not diffep 
from any of your lordships as to the law, 
at least, 1 think not I accept the princi¬ 
ples laid down in this house in Craigdailie 
vs. Aikman. and the other cases referred to 
during the argument. I accept those prin¬ 
ciples loyally and entirely, however much 
1 may err in their application. Every one, 
J thinkr must feel that the consequences of 
your lordships' decision to-day for good or 
evil will be far reaching, and of momen¬ 
tous importance—graver. I think, and more 
serious than the consequences of any de¬ 
cision in which it has been my lot to take 
part. And the argument addressed to your 
lordships has been worthy of the occasion. 
Let, after all, the question at issue is one 
of a very ordinary description. It is alleged 
on the one hand and denied on the other 
that there has been a breach of trust in the 
disposition of property The complaint is 
that funds contributed and set apart for one 
purpose bad been diverted to another and a 
different purpose. Such questions are of 
every-day occurrence, and the problem in 
each case must be solved by the. ordinary 
commonplace inquiry—What was the pur¬ 
pose for whjch the funds in dispute were 
collected? What was the original trust? 
Tie funds now in question in the present 
case represent moneys contributed for the 
support of the Free Church of Scotland. 
They represent property dedicated to the 
use of the church body or voluntary asso¬ 
ciation of professing Christians founded by 
those ministers of the Established Church of 
Scotland, who. in 1*43. on the memorable oc- 
cpsiepn known as the Disruption, withdrew 
from the establishment, or. according to 
their owr. view of the ’.transaction, separ¬ 
ated from the State, carrying with them the 
greater part of the office-bearers of the Es¬ 
tablished Church, and at least ope-half of 
her members in. full communion, asserting 
a|l the while for themselves and their fol¬ 
lowers in time to ,-ome the character of the 
ancient and true Church of Scotland. Set¬ 
ting forte, with these lofty pretensions, they 
declared their adherence' to the principles 
and practice of the Church of Scotland as 
regards doctrine, worship, discipline and 
government, untrammeled and unfettered by 
connection with the State, and purged of 
e\cry taint ui Erastiauism. 


Tlie Heal ami Only Question. 

The question therefore seems to me to be 
this, Was the Church thus purified—the Free 
Church—so bound and tied by the tenets of 
the Church of Scotland prevailing at the 
time of the Disruption that departure from 
those, tenets in any matter of substance 
would be a violation of that profession or 
testimony which may be called the un¬ 
written charter of her foundation, and so 
necessarily involve a breach of trust in the 
administration of funds contributed for no 
other purpose but the support of the Free 
Church—the Church of the Disruption—was 
the Free Church, by the very condition of 
her existence, forced to cling to her 
subordinate standards with so desperate a 
grip that she has lost hold and touch of the 
supreme standard of her faith? Was she 
from birth incapable of all growth and de¬ 
velopment? Was she (in a word) a dead 
branch and not a living church? This. I 
think, is the real and only question. But, 
i? I may venture to say so without offeuse, 
it has been rather pushed aside and ob¬ 
scured by a very interesting preliminary 
search after a principle, if it be a principle, 
called, for the sake of convenience, and not, 
1 think, for the sake of clearness, “the Es¬ 
tablishment principle.” which, in my hum¬ 
ble judgment, partakes rather of the elusive 
attraction of an ignis fatuus. which means 
much or little, just as you may choose to in¬ 
terpret. one of the most obscure passages in 
in Westminster Confession, which in one 
aspect no Christian man. 1 think, or very 
few, would hesitate to accept, but, which, in 
fire mouth of an adherent of the church 
that has abandoned Establishment and 
separated from the State, can only mean a 
counsel of perfection, unattainable in this 
world, at least until the advent of the 
millennium. Your Lordships have been 
furnished with a print of many Scottish 
statutes and a bulky volume containing the 
Acts of the General Assembly of the Church 
of Scotland. I have read these documents 
and many others. to which the attention of 
the House was directed, with much interest 
and'soihe care. I can only say that they 
have confirmed me in the opinion I enter¬ 
tained at the conclusion of the first, argu¬ 
ment—no doubt erroneously—that the judg¬ 
ment under appeal was right and ought, to 
i be affirmed. 1 do not propose to trouble 


your Lordships by tracing the history of 
the Church of Scotland in its connection 
with the State from the date of the first 
Rcformaiion to the time of the Disruption. 
That was done very ably and fully by the 
learned counsel at the bar. It is enough 
for me to say that during the whole period 
of the existence of the Church of Scotland 
there was a constant assertion of spiritual 
independence of the right, as it was termed, 
of the Lord Jesus to reign in bis own house, 
r will only give one instance—I might give 
many—and I will give an instance that oc¬ 
curred almost on the eve of the Disruption. 
On the 23d of May. 1838. the General Assem¬ 
bly of the Church of Scotland passed this 
resolution, which is called “Resolution 
auent the Independent Jurisdiction of the 
Church of Scotland”: 

“The General Assembly, having heard and 
considered the overtures on the independent 
jurisdiction of the Church of Scotland, agreed 
by a majority to the following resolution; 
‘That the General Assembly of the Church 
of Scotland, while they unqualifiedly acknowl¬ 
edge the exclusive jurisdiction of the civil 
courts in regard to the civil rights and emol¬ 
uments secured by law to the church and 
ministers thereof, and will ever give and in¬ 
culcate implicit, obedience to their decisions 
there anent, do resolve that, as is declared in 
the Confession of Faith of this National Es¬ 
tablished Church, the Lord Jesus, as King 
and Head of His church, hath therein ap¬ 
pointed a government in the band of church 
officers distinct front the civil magistrate, 
and that in all matters touching the doctrine, 
government, and discipline of this church her 
judicatories possess an exclusive jurisdic¬ 
tion. founded on the Word of God, which 
power ecclesiastical (in the words of the 
second Book of Discipline) flows immediately 
from God and ifio Mediator, Jesus Christ, 
and is spiritual, not having a temporal head 
on earth but only Christ, the only spiritual 
King and Governor of His kirk, and they do 
further resolve that this spiritual jurisdic¬ 
tion, and the supremacy and sole Headship 
of; the Lqyd Jesus Christ, on whjfch it de¬ 
pends, they w}ll assert, and at a|l hazards 
defend, by the help and blessing of that great 
God, who in the days of old enabled their 
fathers, amid manifold persecutions, to 
maintain a testimony even to the death for 
Christ's Kingdom and Crown; and finally that 














12 


THE SCOTTISH FREE CHURCH CASE 


they will firmly enforce submission to the 
same upon the office-bearers and members 
of this church by the execution of her laws 
in the exercise of the power ecclesiastical.’ 

An Exclusive Jurisdiction. 

Thus, while the church was in connection 
with the state, she tool* upon herself to de¬ 
clare emphatically that what she claimed 
was nothing less than an exclusive jurisdic¬ 
tion. founded on the Word of God, in all 
matters touching the doc.trine as well as. the 
government and discipline of the church. 
The fact that this resolution was passed by 
a majority shows that it was carried by the 
vote of the party which five years later went 
out as the Free Church. During the period 
when the church which had passed through 
the furnace of two- reformations was ap¬ 
proaching her last and greatest trial, there 
grew up in the church two parties—the Mod¬ 
erates and the Evangelicals. It was to the 
Evangelicals in later days that the Free 
Church of Scotland owed her separate ex* 
istence. For a long time the Evangelical 
party was in a minority, and matters then 
went on tolerably smoothly between church 
and state. Ultimately the Evangelicals 
gained the ascendency. They were the party 
of progress, reform and church extension. 
They planted religion in remote and half- 
civilized districts in Scotland. They founded 
missions in all parts of the world. Their 
zeal and fervor were, as their adherents 
boasted, in striking contrast to the apathy 
and lukewarmness of the Moderates. When 
they bpcanie the dominant party they carried 
matters with a high hand. They passed acts 
in the Assembly—the veto act and the chapel 
act—which were altogether beyond the com¬ 
petence of the church as established by law. 
They censured and deposed ministers who 
obeyed the decrees of the Court of Session. 
They held those decrees to be encroachments 
on the true liberties of the church, and ac¬ 
tually pronounced them illegal. The state 
refused to admit - their claims. The strong 
arm of the law restrained these extrava¬ 
gances. They maintained that their pro- 
, ceedings were justified and required by 
the doctrine of the headship of Christ, 
which was common to all the Reformed 
churches, but to which they attached 
peculiar- and extraordinary significance. 
Then.came the Protest of 1842—“The Un¬ 
answered and Unanswerable Protest,” as 
they called it. It w'as followed by a cold and 
chilling reply from the government in 
power, and then it became evident to all 
thinking men that, as the state would not 
give way, the leaders of the Assembly and 
those W’ho adhered to them would have to 
retract their pretensions and own defeat, or 
quit the Establishment altogether. ' No one 
who knew the courage and temper of the 
leaders of the Assembly, no' one w r ho had 
caught the note of defiance or triumph 
sounded by Dr. Chalmers at the close of the 
Edinburgh Convocation, could doubt what 
the issue would be. 

Dr, Chalmers’ Sermon. 

And now, in passing, I would call your 
lordships' attention to one fact., which 
seems to me. not unworthy of notice, when 
Dr. Chalmers’ sermon, preached before the 
first Free Church Assembly, is relied upon 
as a sort of prospectus on. the faith of 
which the funds of the Fr<»e Church were 
collected, as, if the Free Church were a l 
joint stock concern and that sermon an in¬ 
vitation to the public to put their, money 
in it. Months before the disruption actually 
took place, when all Scotland was looking 


forward with feverish anxiety to the last 
act of the drama, the Evangelical party, 
with Dr. Chalmers at their head—a great 
divine and an eloquent preacher, who had a 
w'onderful faculty for organization and some¬ 
thing of the genius of a statesman—set 
about collecting funds for the needs of the 
church. 

“Before the meeting of the General As¬ 
sembly”—I am now quoting a book which, 
I believe, is of recognized authority—‘‘the 
members of the popular party had arranged 
their course of proceeding. Associations 
were formed throughout the whole of Scot¬ 
land, and subscriptions w’ere collected for 
the purpose of building churches and pro¬ 
viding a maintenance for the ministers who 
were soon to lose the benefits of the Na¬ 
tional endowment. Dr. Chalmers presided 
over the General Finance Committee, and 
acted with an energy and success w'hich 
amazed even those who had best known his 
labors for a similar purpose in the cause of 
the Establishment. The thousands of cir¬ 
culars w’hich he dispersed bore the follow¬ 
ing mottoes:—‘Surely I will not come into 
the tabernacle of my house. nor go up into 
my bed, I v.-ill not give sleep to my eyes 
nor slumber to mine eyelids, until I find a 
place for the Lord, an habitation for the 
mighty God of Jacob, the God of Heaven. 
He will prosper us; therefore we His serv¬ 
ants will arise and build.’ That w’as the 
origin of the fund, those were the winged 
messengers by w'hich the ground was pre¬ 
pared and the good seed sown. And when 
the disruption took place, and when appeals 
w’ere made in every parish, in every nook 
and corner of Scotland, calling upon the 
people to stand by the church of their fore¬ 
fathers. denouncing the tyranny of the state, 
describing in harrowing terms the sufferings 
of ministers, old and young, driven from 
their homes with their wives and children, 
and forced to seek shelter in sheds and hov¬ 
els, while they faithfully ministered to their 
flocks, some of them actually dying of want 
and exposure, money came in abundantly 
in answer to the call.’.’ 

Dr. Chalmers’ sermon to the first Free 
Church Assembly wms but one of a thousand, 
I might say of a million, similar discourses. 
It was eloquent, of course; it was stirring. 
But I rather take leave to doubt whether the 
warning that I find there against voluntary¬ 
ism and against anarchy—an evil, as the 
preacher truly says, more to be dreaded 
than voluntaryism—was very stirring, or 
likely of itself to evoke a generous re¬ 
sponse. The negation of dangerous princi¬ 
ples does not, as a rule, rouse enthusiasm. 
Of what is called the establishment principle 
as a tenet or opinion of the Free Church I 
shall have a word to say presently; all I 
want to impress upon your lordships at this 
moment is that when that sermon was 
preached by Dr. Chalmers, on an occasion 
more eloquent and more stirring than any 
appeal in words could be, the fund was 
already in full swing. 

Object of the Fnnds. 

Then, for whom and with w’hat purpose 
was that money collected? Except as re¬ 
gards sums devoted to special purposes and 
special objects the fund w-as all one fund. 
It was collected for the needs of the Free 
Church of Scotland; and what was the Free 
Church? Did it go out as a sect, of a per¬ 
suasion, or a connection, , with peculiar 
tenets cut and dried and defined in the pre¬ 
cise language of a conveyance? Nothing of 
the kind. Those tvho went out went, forth 
declaring that they were not a sect, but the 


national church, and that they were still thq 
Church of Scotland. 

“We arc,” they said (to quote the words of 
Dr. Candlish, one who was only second— 
if he was second—to Dr. Chalmers himself) 
“We are still the Church of Scotland, the 
only church that deserves the name, the 
only’ church that can be known and recog¬ 
nized by the maintaining of those princi¬ 
ples to which the Church of our fathers was 
true w’hen she was on the mountain and on 
the field, when she was under persecution, 
when she was an outcast from the world. 
And believing that we are not seceders from 
the church, but are the church separated from 
the state, believing that we are not a sect 
separated from the Established Church, but 
that we are the Church of Scotland separat¬ 
ed from the state, we hold ourselves en¬ 
titled, without any disparagement to other 
religious bodies, to assume and act upon 
the principle that we are to maintain the 
character of the national church of Scot¬ 
land.” 

An impossible position, it may be said, in 
point of law; they went out not as a church, 
but as individuals separating from the church, 
and they united again in a voluntary body ol 
professing Christians. That may be so. But 
to themselves and to their adherents, and. I 
may add, to other religious bodies which 
were not of their communion, they supported 
the character of the National Church of Scot¬ 
land, and supporting that character which 
they assumed, rightly or wrongly, they must 
be taken, 1 think, in regard to their own 
body to have all the powers of a national 
church. Speaking for myself, I cannot form 
a conception of a national church untram¬ 
meled and unfettered by connection with the 
state which does not at least possess tne 
power of revising and amending the formulae 
of subscription required of its own office 
bearers and the power of pronouncing au¬ 
thoritatively that some latitude of opinion i£ 
permissible to its members in regard to mat¬ 
ters, which, according to the common appre¬ 
hension of mankind, are not matters of faith. 

I agree that a sect may erect any point or 
any punctilio, however trifling and absurd it 
may be, into an article of faith. 

The Establishment Principle. 

My point is that the Free Church were not 
a sect and that they never made the Estab¬ 
lishment Principle an article of faith. But, 
my lords, I go farther. This Establishment 
Principle, whatever it is, can have no higher 
authority than the article of the Westmin¬ 
ster Confession, in which it is supposed to 
be embedded. If the church has power to 
amend her confession she can. of cour-se, 
take occasion to declare that the Establish¬ 
ment Principle is to be regarded as an open 
question in reference to which every man is 
at liberty to exercise his private judgment. 
Now’, it seems to me clear that the Free 
Church, when it came into existence, claimed 
the power of altering and amending her con¬ 
fession of faith. On the second argument the 
dean of faculty called your lordships’ atten¬ 
tion to a catechism on the principles and con¬ 
stitution which the Free Church of Scotland 
issued by authority of the General Assembly. 
The preparation of this work was taken in 
hand in 1843, it w’as issued in December, 
1845, by authority of the Publication Com¬ 
mittee. In 1847 the General Assembly ap¬ 
proved generally of the catechism as con¬ 
taining “a valuable summary of this 
Church’s history and exposition of her gen¬ 
eral principles from the beginning of the 
Reformation to the present time,” and at 
the same time the Assembiy earnestly rec¬ 
ommends its general use, so that it has au 















THE SCOTTISH FREE CHURCH CASE. 


13 


unquestionable claim to be considered as a 
contemporaneous document. Mr. Taylor 
Innes, in his valuable work on the Law of 
Creeds in Scotland, quotes from it as a book 
of authority, but speaks of it as an intense¬ 
ly polemical volume. So it is. From be¬ 
ginning to end It attacks and flouts and be¬ 
littles the Established Church, but the very 
bitterness of its tone shows that it \yas 
composed in the earliest days of disruption, 
and 1 will not weary your lordships by 
quoting from it at any length, but I may 
remind your lordships that it points out 
that the Church of Scotland as a Church in 
its own authority adopted the Westminster 
Confession, and that at the very time when 
Knox's Confession had the sanction of the 
state. The catechism deals at some length 
with Church power. It explains that this 
power is the power of the Keys. It de¬ 
clares that it is divided into four parts, and 
that the first part is the dogmatic power in 
virtue of which the doctrine of the Word is 
declared and religious controversies are 
determined. It asks, ‘When is the dogmatic 
power abused?” The answer is, "When it is 
made the pretext for a claim of infallibility 
and employed to subvert the right of pri¬ 
vate judgment, and w'hen the implicit sub¬ 
mission which is due only to the Word is 
demanded for Church formularies and de¬ 
vices." In an earlier passage in a note 
quoted by Mr. Taylor Innes there is a sly 
hit at the Established Church and a sharp 
contrast drawn between the Evangelistic 
party and the view r of the Moderate party 
as to the position of the Church, not alto¬ 
gether, I need hardly say. to the advantage 
of the latter. "It is one thing,” say the 
authors of the Catechism, ‘‘for the civil 
privileges and endowments of a church to 
be tied to a Confession by civil enactments” 
(that was the contention of the Evangelists), 
“and quite another thing for a church itself 
to be so” (that according to their catechism 
w : as the servile bondage of the established 
church). “In the former case the church, 
when she finds that any articles of her con¬ 
fession are unscriptural, is at liberty to re¬ 
nounce them, being only bound if she do not 
resign her temporalities. In the latter case 
the law allows no relief whatever for the 
church in her corporate capacity when she 
discovers errors in her confession, which, of 
course, is as much as to say that the church 
is bound always to go absolutely upon the 
supposition of its soundness and to interpret 
the word of God agreeably to its declarations. 
Under these circumstances the supreme and 
ultimate standard of doctrine is not the 
Bible, but the confession of faith.” My 
lords, I greatly fear that is the position into 
which the Free Church will be driven if Mr. 
Johnstone’s argument prevails. I could 
easily multiply quotations from this Free 
Church catechism, but I think I have quoted 
enough to prove that to followers of the 
Free Church movement the notion of alter¬ 
ing the Westminster confession of faith was 
not so very shocking. If the view which 
I have roughly indicated is correct, I think 
it is enough to dispose of this case in both 
its branches. But there are two points on 
which a great deal of argument was be¬ 
stowed, and on which I should like to say a 
few words. There is the establishment prin¬ 
ciple, as it is called, and there are those 
higher mysteries which were dealt with 
boldly but reverently by the learned counsel 
who spoke second for the Free Church. As 
regards the establishment principle I know 
that that very distinguished man to whom 


I I have already referred, and who, a.ter Dr. 
j Chalmers, was the leader of the Free Church, 

! doubted to the last whether the prin¬ 
ciple of a national establishment of religion 
was a principle at all. He maintained that 
throughout the whole of the church’s history 
there was no event that proclaimed formally 
and directly that the principle of a national 
establishment of religion was a vital prin¬ 
ciple which the church was bound to main¬ 
tain. Speaking for myself, I do not alto¬ 
gether take that view. I think it must be 
j admitted that the establishment principle, as 
it may be gathered from the somewhat ob¬ 
scure language of the Westminster confes¬ 
sion, was the generally received opinion in 
the church. It was necessarily the received, 
though unexpressed, opinion of the church 
before the disruption. When the disruption 
took place circumstances were altered, and 
then, I think, there was a diversity of opinion 
1 on the subject, 
j Dr. ( aml 1 ish’x Opinion. 

Lord Trayner says that it appears to him 
! “difficult to hold that a mere opinion as to 
! what ‘some third person was bound to do, 
i which he might neglect or refuse to do, and 
| wTtich the church would not compel him to 
| do, could in any way be an essential part of 
I the constitution of the church which held 
I that opinion.” Well, that was exactly Dr. 

| Candlish’s opinion at the very time of the 

I disruption. I refer to his opinion not as 
to the opinion of a person authorized to 

■ speak on behalf of the church, but as the 
opinion of a very leading man, whose opin¬ 
ion a great many others would probably fol- 
j low. At the General Assembly held in Glas- 
I gow in the autumn of the year of the dis¬ 
ruption, Dr. Candlish, speaking about the 
establishment principle, and pointing out 
that the refusal of the state to establish the 
church on the only terms to which the 

church would consent, left them a great de¬ 
gree of liberty as to the terms on which 
they should stand with other churches, put 
the case thus: 

“Is the division and schism of the Chris¬ 
tian church to be kept up by a question as 
to the duty of another party over whom we 
have no control? Let it be that we main¬ 
tain our different opinions as to the duty 
of the state to support the church, and the 
duty of the church to receive support from 
the state when it is given consistently with 
j spiritual freedom; still shall that question 
which has become a mere theoretical ques¬ 
tion in the church of Christ, and which, so 
far as we can judge, seems destined to be a 
mere theoretical question till the time when 
the kingdoms of this world shall become the 
kingdoms of our Lord and of His Christ, 
shall that question prevent cordial co-opera¬ 
tion and harmony among ourselves and our 
united action in defense of one common 
Protestantism against one common foe?” 

I have no doubt that the opinions which 
Dr. Candlish expressed so eloquently at the 
time of the disruption must have been held 
by many adherents of the Free Church, and 
as time went on, and the splendid voluntary¬ 
ism of the Free Church, on a basis and a 
scale never’before understood or attempted, 
placed the Free Church on a level with the 
Established Church at home, and in a posi¬ 
tion certainly not inferior as regards mis¬ 
sionary labors abroad, the natural tendency, 
I think, even among those who were dis¬ 
posed to regard the establishment principle 
as a sacred principle (if any such there 
were) must have been in the direction of the 
conclusion that the Church of Scotland, 


whether established or free, could exist not 
only without an establishment, but even 
without, the profession of the establishment 
principle. 

Establishment a .Small Question. 

Speaking for myself, and with the utmost 
deference to the great majority from whom I 
have the misfortune to differ, I think this 
question about the establishment principle 
is a very small question, indeed, and that It 
occupied a great deal too much of the argu¬ 
ment, to the exclusion of far weightier mat¬ 
ters. I cannot call the matters that were 
discussed by Mr. Haldane small or insignifi¬ 
cant. They are mysteries into which I do 
not think it is our province to intrude, and, 
speaking for myself, I am not quite sure 
that at the conclusion of Mr. Haldane’s ar¬ 
gument I had gained a clearer insight into 
these matters than I had before. At any 
rate, 1 am happy to think that it is not nec¬ 
essary to enter into these questions at all. 

Power of Church to Relax Formulae. 

If the church has power to relax the 
•stringency of the formulae required from the 
i ministers and office bearers so as to avoid 
j offense to the consciences of the 'most eon- 
I scientious, and to keep within her fold the 
i most able and enlightened of her probation- 
| ers, that is all that is required. That she 
j ha.s that power I cannot doubt. These form- 
! ulae were imposed by act of Parliament. If 
they owe their force and efficiency to the 
Established Church, to acts of Parliament, 
the Free Church has rejected the ordinances 
of men and the authority of Parliament, and 
is free to regulate her own formulae. If in 
the Established Church they owe their force, 
wholly or in part, to the antecedent recogni¬ 
tion of the church, the Free Church, as it 
seer*« to sie, claiming to act, and recognized 
by her adherents as acting, in the character 
of a national church, and proceeding regu¬ 
larly in accordance with the constitution of 
the church, may do now what the church did 
in the seventeenth century. 

United Free Church Has Preserved 
| Identity. 

Owing to the vast importance of the case, 
end the. very .able and learned arguments,of 
the learned counsel at the bar, I have 
thought it right to state, in my own lan¬ 
guage the reasons which have led me to the 
opinion I hold. Under ordinary circum¬ 
stances, I should have been content to ex¬ 
press my concurrence in the opinions deliv¬ 
ered by the learned judges in Scotland, ana 
specially with the opinions of the Lord Or¬ 
dinary and Lord Trayner. It is impossible, 
ir. my opinion, to overrate the importance of 
the issue awaiting decision. I do not agree 
with the learned counsel for the appellants 
that the United Free Church is a change¬ 
ling, a creation of a composite nature with 
a double face and two voices. Though the 
name is slightly altered, I think the Free 
Church has preserved her identity. I think 
she is entitled to as much respect, I had al¬ 
most said as much veneration, as when she 
went forth, casting off for conscience sake 
the fetters and advantages of state’ con¬ 
nection. I do not think she has forfeited 
any of her rights by receiving into her bos¬ 
om a Reformed and Presbyterian church, 
one with her in faith, in baptism and all es- 
sential points of doctrine; and, for my part, 
I should hesitate long before I w r ould give 
my voice for a decision which will help, or 
at any rate direct, her to subordinate the 
Scriptures to the Westminster Confession of 
Faith. 
















14 


THE SCOTTISH FREE CHURCH CASE. 


Lord Davey on the Church Trust. 


Lord Davey said: My lords, the subject 
matter ot the action out of which this ap¬ 
peal has arisen is certain heritable and 
movable property of great value, which is 
held by trustees, who are the first respond¬ 
ents, in trust for the Free Church of Scot¬ 
land. That church is a Voluntary and un¬ 
incorporated association of Christians, 
united on the basis of agreement in cer¬ 
tain religious tenets and principles of wor¬ 
ship, discipline and church government. The 
pursuers and present appellants were in 
the year 1900, and claim to be still, members 
of the Free Church, and their complaint, so 
far as if is cognizable )ty a civil court, is 
that their trustees, at the bidding of other 
members of the Free Church, but in breach 
of their trust, have applied, and threaten 
and intend to apply, the trust property to 
purposes which are alien to the purposes 
of the trust, and for the benefit of persons 
who have no title to call themselves mem¬ 
bers of the chui'eh. In fact, the appellants 
say that they alone hold in their integrity 
the tenets and principles of the association 
for whose benefit the trust was founded. 

Srttlril l.nw 

The law on this subject is free from doubt. 
It has been settled by numerous decisions of 
the courts both in Scotland and in England, 
and has been affirmed by judgments of this 
House. The case of Craigdallie vs Aikman 
came twice before this House. In the second 
appeal heard in 1820, and reported in Q. 
Bills, 529, Lord Eldon thus stated the princi¬ 
ple on which the House proceeded when this 
matter was formally before the House: 

“We acted upon this principle, that if we 
could find out what were the religious prin¬ 
ciples of those who originally attended the 
chapel we should hold the building appro¬ 
priated to the use of persons who adhere to 
the same religious principles ' 

And after stating the result of the in¬ 
quiries directed by the former judgment 
Lord Eldon said: 

“Supposing that there is a division of reli¬ 
gious opinions in the persons at present 
wishing to thjoy this building, the question 
then would be' which of them adhered to the 
opinions of those who built the place of wor¬ 
ship and which of them differed from those 
opinions, those who still adhered to their re¬ 
ligious opinions being more properly to be 
considered as the cestui que trusts of 
those who held this place of worship in trust 
than those who have departed altogether 
irom the religious principles of those who 
founded this place, if I may so express it.” 

In an English case (Attorney General vs. 
Pearson, 3 mer. 353) decided in 1817. and 
therefore between thp two appeals in the 
Craigdallie case, Lord Eldon, referring to 
that case, expounded the principle acted on 
by the House morp at large: 

“But if.” he said, “on the other hand, it 
turns out (and I think that this point was 
etetried in the case which lately came before 
the House ot Lords' by way of appeal out of 
Scotland) that the institution was established 
for the express purpose of such form of re¬ 
ligious worship or the teaching of such par¬ 
ticular doctrines ns the founder has thought 
most - conformable to the principles of the 
Christian religion, I do not apprehend that 


it i*s in the power of individuals having the 
management of that institution at any time 
to alter the purpose for which it was found¬ 
ed, or to say to the remaining members, we 
have changed our opinions, and you who as¬ 
semble in this place for the purpose of hear¬ 
ing the doctrines and joining in the worship 
prescribed by the founder shall no longer 
enjoy the benefit he intended for you unless 
you conform to the alteration which has 
taken place in our opinions. In sifcli a case, 
therefore, I apprehend—considering it as 
Settled by the authority that 1 have already 
referred to—that when a congregation be¬ 
comes dissentient among themselves the na¬ 
ture of the original institution must alonp 
he looked to as the guide for the decision 
of the court, and that to refer to any other 
criterion as to the sense of the existing 
majority would be to make a new institution, 
which is altogether beyond the reach and 
inconsistent with the duties and character 
of thia Court.” 

The Function of a Civil Court, 

My Lords, I disclaim altogether any right, 
in this or any other civil court of this realm, 
to discuss the truth or falseness of any of 
the doctrines of this or any other religious 
association, or to say whether any of them 
are based on a just interpretation of the 
language of Scripture, or whether the con¬ 
tradictions or antinomies between different 
statements of doctrine are or are not real 
or apparent only, or whether such contradic- 
tiQns do or do not proceed only from an im¬ 
perfect and finite conception of a perfect and 
infinite being or any similar question. The 
more humble but not Useless function of the 
civil court is to determine whether the 
trusts imposed upon property by the found¬ 
ers of the trust are being duly observed. I 
appreciate and, if I may properly say so, I 
sympathize with the effort made by men of 
great intelligence and sound learning to es¬ 
cape from the letters forged by an earlier 
generation. But, sitting on appeal from a 
court of law, I am not at liberty to take any 
such matter into consideration. The ques¬ 
tion In each case is, what were the religious 
tenets and principles which formed the bond 
of union of the association for whose benefit 
the trust was created? I do not think that 
the eottrt has any test or touchstone by 
which it can pronounce that any tenet form¬ 
ing part of the body of doctrine professed by 
the association is not vital, essential or fun¬ 
damental. unless the parties have themselves 
declared it not to be so. 1 he bond of union, 
however, may contain within itself a power 
in some recognized body to control, alter 
or modify the tenets and principles at one 
time professed by the association: but the 
existence of such a power would have to be 
proved, like any other tenet or principle of 
the association. My lords. I do not propose 
to travel through the numerous documents 
which state the grounds of the great dis¬ 
ruption in 1813 and the principles held and 
professed by the founders of the Free 
Church. The result, in my opinion, is that 
the Free Church took with it the doctrine, 
government and discipline of the Established 
Church, freed from the fetters and conditions 
imposed on that church by the connection 
with the state. The Free Church adopted 


1 as its standards the Westminster Confes¬ 
sion and the other subordinate standards of 
the Established Church. It also adopted the 
provisions of the barrier act and any other 
provisions affecting the constitution of the 
Church or the powers of its General Assem¬ 
bly. In fact, the founders of the Free Church 
claimed that: 

“In doctrine and discipline they truly rep¬ 
resented the church of their fathers,” and 
that “It is her being free, and not her be¬ 
ing established, that constitutes the real 
historical and hereditary identity of the Ke- 
formed National Church of Scotland,” 

Tlie Chartei- of the Free Church. 

There is, however, one document which 
should be more particularly referred to—viz., 
the protest put forth as their first act by 
the members of the General Assembly of the 
Established Church who withdrew from that 
assembly on the historical 18th May, 1843. 
This protest was ordered to be recorded 
by the several presbyteries of the Free 
Church at the beginning of their presbytery 
books as the ground and warrant of their 
proceedings, and it may fitly be called the 
charter of the Free Church. It is at once 
an apology and an affirmance of the position 
taken up by the founders of the church in 
vindicating in vigorous terms their right and 
duty to separate from the Establishment. 
Maintaining the Confession of Faith and 
other standards of the Church of Scotland r.s 
heretofore understood, they are careful to 
firmly assert the right and duty of the civil 
magistrate to maintain and support an es¬ 
tablishment of religion in accordance with 
God’s Word. It is a matter of dispute 
whether it was a tenet of the Established 
Church that it is the duty of the state to 
establish and endow a national church. It 
has been said by learned judges in the Court 
of Sessions that it was not required that the 
principle of a religious establishment in con¬ 
nection with and endowed by the state should 
be professed as an article of faith. It was 
pointed out that the article on the civil 
magistrate admits of other constructions, 
and that a civil ruler may perform the duty 
ascribed to him in that article in other ways 
than by establishment and endowment. 

Establishment Principle a Distinctive 
Tenet. 

But however this may be, I think It. Is 
plain from their public utterances that the 
founders of the Free Church considered that 
the establishment principle was part of the 
body of doctrine which they brought with 
them from an established church, and that 
they held and stated it in the clearest terms. 
It is impossible, in my opinion, to get rid 
of the explicit statement of the doctrine in 
the protest of May 18, 1843, by calling it 
“parenthetical,“ or a matter of opinion. 
The affirmance of the doctrine may be said 
to give strength from the form of the sen¬ 
tence- for it shows that the authors of the 
protest regarded it as of so much import¬ 
ance that they go out of their way to state 
it. and thus define more clearly their p osi- 
tion, and to avoid the imputation that by 
separating from the Established Church they 
had become Voluntaries. Again, in the act 
of 1846. anent questions and formulas, while 
disclaiming intolerant or persecuting priu- 










THB SCOTTISH HR EE CHURCH CASE. 

j 


15 


cfples. the church “firmly maintains the 
same scriptural principles as to the duties 
of nations and their rulers In reference to 
true religion and the Church of Christ for 
which she has hitherto contended.” 

And, not to multiply evidence of what is not 
really disputed, in the address of Dr. Chal¬ 
mers, which was incorporated in a manifesto 
Issued by direction of the General Assembly 
of May, 1843, and entitled “The Affectionate 
Representation of the Free Church of Scot¬ 
land,'' that eminent person expressed him¬ 
self in language which I will not repeat, as 
it has been read by my noble friend on the 
woolsack. My lords, 1 cannot bring myself 
1o doubt that a doctrine thus firmly asserted 
and maintained, and officially put forward 
was a distinctive tenet of the Free Church 
of Scotland, and formed a link in the bond 
of union between the members of that as¬ 
sociation. The Lord Ordinary and the learned 
judges in the Inner House treated it as 
neither fundamental nor essential, and they 
seem to have regarded it as a piotis opinion 
held indeed by the founders of the Church, 
but destitute in the circumstances of any 
practical importance. I have already said 
that I have no means of testing the funda¬ 
mental or essential character of the doc¬ 
trine apart from the utterances of the par¬ 
ties themselves. They certainly were as far 
as possible from treating it as an open 
question; and that attitude was maintained 
for man) years after the foundation of the 
church. The doctrine of the independence 
of the Church under the headship of Christ 
alone was the very foundation of their posi¬ 
tion, and was necessarily put forward by 
them as fundamental. But that is no proof 
that they did not regard other tenets also 
as essential or distinctive articles of belief. 

Cower of Assembly to Alter Iloetriiie. 

The questions therefore, in my opinion, 
come to be whether it was a term in the 
compact or bond of union that the General 
Assembly should have power to ..alter or 
vary the doctrines of the Church, and what 
are the limits (if any) of such a power. I 
was impressed (as I believed all your Lord- 
ships were) by the powerful argument of 
the Dean of Faculty. If I understand the 
learned Dean correctly, he maintained that 
the General Assembly of the Church of Scot¬ 
land had by its constitution an inherent 
power of plenary legislation over all mat¬ 
ters ecclesiastical, including doctrine, sub¬ 
ject only to the conditions imposed by the 
Act of Assembly called the Barrier Act. And 
he carried his argument so far as to main¬ 
tain that the General Assembly of the Free 
Church exercised the inherent powers of the 
Established Church, hut freed from the fet¬ 
ters imposed by Acts of Parliament, might 
derogate from, or even reject, the Confes¬ 
sion of Faith itself. My Lords, the freedom 
of the Church from the control of the civil 
power in spiritualities which is asserted by 
the Free Church does not appear to me to 
warrant any a priori inference of the exist¬ 
ence of such a plenary power of legislation 
in the General Assembly. It is, indeed, al¬ 
most a truism that an unestablished reli¬ 
gious association is free from State control 
as regards doctrine, government, and dis¬ 
cipline. But that freedom, which differenti¬ 
ates a voluntary association from an estab¬ 
lished church, is not inconsistent with the 
adoption by the association of certain tenets 
which distinguish it from other similar 
bodies. The right of the Assembly to im¬ 
pose any innovation from established doc¬ 
trine on a dissentient minority and the lim¬ 


its of such right, if any, must be found in 
the constitutional powers of that body, and 
must be approved by evidence. The historical 
argument of the learned Dean appears to 
me on examination to afford but little as- 
oistance on this crucial point. 

The ConfeMnionn. 

Knox's Confession of Faith was not adopt¬ 
ed by the General Assembly of the Church, 
for at that time the Presbyterian form of 
Church government was not established, and 
there was no such body. It was presented by 
the barons and others to Parliament, and 
then passed into law. The statutes of 1638 
and the subsequent years were passed during 
the period which is called in Scotch eccle¬ 
siastical history the Second Reformation, 
and appear to be in the nature of protests 
against the action of the King’s Government, 
and in some instances the King’s Commis¬ 
sioner is supplicated to obtain ratification 
by Parliament of the Acts of the Assembly. 
The Westminster Confession was adopted as 
an Act of the General Assembly in 1648. and 
did not. it is true, receive Parliamentary 
sanction until 1692, after the period of dis¬ 
turbance between the Restoration and the 
Revolution of 1688 had passed. It is to be 
observed, however, that in the Act of 1647, 
approving the Westminster Confession, it is 
expressly stated that the said Confession 
was found by the Assembly to be 

“In nothing contrary to the received doc¬ 
trine, worship, discipline and government of 
this v-'ek.*' 

The Assembly, therefore, did not consider 
itself to be introducing into the Church any 
innovation in doctrine. The Westminster 
Confession was intended to be an eirenicon or 
basis of union between the Churches in the 
two kingdoms, and the adoption of it by the 
Scottish Assembly was ara much a political 
as an ecclesiastical act. The “Chapels Act” 
and the "Veto Act,” which were the fore¬ 
runners, and indirectly the cause of the 
great Disruption, can hardly be cited as 
evidence of the power of legislation which 
is claimed. These Acts were said by their, 
authors to be declaratory only of existing 
rights, and although they involved the as¬ 
sertion of the larger principle for which the 
majority in the General Assembly were 
then contending, the particular subjects 
dealt with would seem to come within the 
scope of the internal management of an un- 
estubllshed Church. They were held in the 
Court of Se.ssion and in the House, in the 
course of the litigation which ensued, to he 
of no effect, because their provisions (it was 
held) were at variance with those of Acts of 
Parliament. It was not. necessary, there¬ 
fore, for the learned Judges to give any de¬ 
cision as to the abstract power in the Gen¬ 
eral Assembly to pass them. But the dicta 
of the learned Judges were not favorable to 
the respondents’ contention. (See the opin¬ 
ions in the first Auehterarder case, 2 Rob¬ 
ertsons’ report, pp. 25, et seq.) Counsel re¬ 
ferred to chapter VII. of the Second Book of 
Discipline. The sections numbered from 6 
to 7 describe the powers of all Assemblies 
from kirk-session to an Ecumenical Council, 
and do not relate specially to the General 
Assembly. It does not appear to me that 
any of these sections either confer or recog¬ 
nize the existence of a power in the General 
Assembly to impose new doctrine on the 
Church, for that is what it claimed. They 
seem to be directed to the preservation and 
maintenance of established doctrine and the 
reform of abuses. Sections 21 to 26 describe 
the powers of what is there called the Na- 
tipual Assembly, correeponding to- what is 


Row designated the General Assembly. 
There are large powers for the protection 
or the spiritual jurisdiction, the patrimony 
of the King, and, generally, concerning “ail 
weighty affairs that” concern the well being 
and good order of “the whole Kirks of the 
Realm.” But nothing is raid as to doctrine. 
Counsel did not, in fact, bring to your Lord- 
ships’ attention any work of recognized au¬ 
thority in the Presbyterian Churches in 
which it is clearly laid down that the Gen¬ 
eral Assembly possesses this plenary power 
of legislation over doctrine; and l cannot, 
say that it has been proved to my satisfac¬ 
tion that either by inherent right or by 
usage, or by contract, the General Assembly 
of the Free Church has any such power. 
But, my Lords, I think that the learned 
Judges of the Court, of Session relied princi¬ 
pally on the provisions of the Barrier Act, 
1597. The first observation is that that Act. 
is a Procedure Act. and not an Enabling Act. 
It does not purport to confer any now powero 
whatever, but it regulates the exercise of 
such powers as the General Assembly may 
possess. 

The Harrier Act. 

It is said, however, that the provisions of 
the Barrier Act contemplate and imply the 
existence ot r power in the General Assem¬ 
bly to make some innovations or alterations 
in, among other things, doctrine. I think 
this would be true if. after the word “exist¬ 
ence" you added the words “or the possible 
exercise by the Assembly.” The Act may 
have been passed for the purpose of pre¬ 
venting a majority from inaKing sudden in¬ 
novations and alterations which it was ex¬ 
pected or feared might be attempted without 
very carefully weighing what the strict con¬ 
stitutional powers of the Assembly were. 
But, my Lords, let it be assumed that the 
language of the Act does imply the existence 
of some power; certainly it is not necessarily 
an unlimited or general power, and the ques¬ 
tion then is. What is the extent or what are 
the limits of the power? It has boon said 
that it is a power to legislate in any manner 
not inconsistent, with the continued exist¬ 
ence of the Church. Bin applying that to 
the case now before us, what. It may be 
asked, is the Church but an organized asso¬ 
ciation of Christians holding certain doc¬ 
trines and principles in common? t was at 
one time disposed to think that a soupd 
limitation might be found if the power were 
confined to the interpretation of formularies, 
but. further reflection has satisfied me that 
if your Lordships were so to hold you wo.uld 
only be making 'a more or less plausible, but 
wholly unverified assumption. I also think 
that not only an accepted Interpretation of 
Scripture, but an aceepte'd interpretation of 
or influence from a subordinate standard 
may just as well be an article of faith as 
any other opinion, and there is no solid dis¬ 
tinction. for this purpose, between one re¬ 
ligious principle or opinion and another. 

I do not think, for example, that you ad¬ 
vance the argument by calling the establish¬ 
ment principle a question of policy; only I 
have come to the conclusion that it would 
be contrary to all principle to infer front the 
provisions of the Barrier Act, unsupported 
by any evidence of usage or other evidence, 
a power in the General Assembly or the 
majority to vary Ihe trusts upon which this 
property is held to the prejudice of a dis¬ 
sentient minority. I think the Dean of 
Faculty was logically right in contending 
for an unrestricted power of legislation. But 
if the property was intended to be hold in¬ 
trust for a body of Christians holding suoii 















16 


THE SCOTTISH FREE CHURCH CASE. 


doctrines a:. the majority acting through the | 

General Assembly might, from time to time j 

approve, such an intention should lie made 

clear beyond the possibility of cues,ion. 

• 

V/hat tlie Assembly Dill. 

Now. what is it that the General Assembly 
has done? I shall content myself by refer¬ 
ring to three documents. In 1867 there was 
a movement in the Free Church for union 
with the United Presbyterian Church. In 
a report of the committee of the Free Church 
cf that year on union with ether Churches 
there is contained a statement of the United 
Presbyterian Church Committee under the 
heading of “Distinctive Articles.” It is as 
fellows: 

“That it is net competent to the civil mag¬ 
istrate to give legislative sanction to any 
creed in the way of setting up a civil estab¬ 
lishment of religion, nor is it within province 
to provide for the expense of the administra¬ 
tions of religion out of the national re¬ 
sources. 

“That Jesus Christ, as cole King and Head 
of His Church, has enjoined upon His people 
to provide for maintaining and extending it 
by freewill offerings. 

‘That this being the ordinance of Christ, it 
excludes State aid for these purposes, and 
that adherence is the true safeguard of the 
Church’s independence. Moreover, though 
uniformity of opinion with respect to civil 
establishments of religion is not a term of 
communion in the United Presbyterian 
Church, yet the views on this subject held 
and universally acted on are opposed to these 
Institutions.” 

I will only ask your Lordships to contrast 
this language with the views on this subject 
expressed by Dr. Chalmers, and put forward 
by the founders of the Free Church in their 
manifesto entitled “The affectionate repre¬ 
sentation of the Free Church of Scotland, 
1843,” to which I have already referred. In 
fact the voluntary principle, the unlawfulness 
of accepting aid in any form from the Stats, 
was put forward as one of the most distinc¬ 
tive principles of the United Presbyterian 
Church in a tract published by authority on 
the jubilee cf that Church in the year 1S97. 
Ey an Act of the General Assembly of the 
Free Church, dated 30th October. 1900. after 
a recital that a union of the Free Church of ! 
Scotland and the United Presbyterian Church : 
of Scotland was in contemplation, and was i 
about to bp consummated, it was enacted and 
ordered (amongst other things) that all prop¬ 
erty held by Trustees for behoof of the Free 


Church of Scotland should belong to and be 
held for behoof of the United Free Church 
of^Scotland. On the following day the Act 
o; Union was passed, and certain declarations 
were adopted by the United Assembly de¬ 
fining the basis of union, the third of which 
is as follows: 

“As this union takes place on the foot¬ 
ing of maintaining the liberty of judgment 
and action heretofore recognized in either 
of the Churches uniting, so, in particular, 
is it hereby declared that members of both 
Churches and also of all Churches which 
in time past have united with either of 
them, shall have full right, as they sec 
cause to assert and maintain the view's of 
truth and duty which they have liberty to 
maintain in the said Churches.” 

In other w'ords, the Establishment prin¬ 
ciple and the doctrine as to the duty of 
the civil Magistrate toward the Church as 
maintained and firmly held by the founders 
of the Free Church are henceforth to be 
open questions for members, ministers, and 
office-bearers, and the property w'hich was 
placed in trust for the Free Church is hence¬ 
forth to be held in trust for the mainte¬ 
nance of a Church in the pulpits of w'hich 
the distinctive tenets of the Free Church 
may, or may not be held, and, indeed, doc¬ 
trines at variance with them and directly 
contradictory of the Establishment principle 
may lawfully be maintained and taught. 

Free Church and the Confession. 

The appellants also say that in the consti¬ 
tution of the United Free Church another 
distinctive principle of the Free Church as 
declared by the founders of that Church has 
been abrogated, viz., the unqualified ac¬ 
ceptance of the Westminster Confession. 
They point to the change in the language 
of the question relating to the Confession 
which candidates are required to answer in 
the United Free Church. They say that 
this change, accompanied and explained by 
the Declaration contained in the preamble 
to the Act prescribing these questions, has 
the effect of substituting for a belief in 
the whole doctrine of the Confession of 
Faith belief in such portions thereof only 
as the General Assembly may from time to 
time determine to be of the substance of 
the reformed faith, or, in other words, such 
portions as the Assembly may from time to 
time approve. This is not a mere question 
of interpretation of formularies, and I am 
disposed to think that on this point also 


the argument cf the appellants is well 
founded. The learned Dean of Faculty 
rightly said that the substantial question 
was whether the United Free Church ba3 
preserved its identity with and is the le¬ 
gitimate successor of the Free Church. My 
Lords, I find myself quite unable to answer 
that question in the affirmative. 

Terms of Trust Deeds. 

The other two eases relate to the trusts cJ 
buildings held for particular Free Church 
congregations on trust deeds which are in 
the form of that Model Trust Deed ap¬ 
proved by the General Assembly of the 
Free Church. The terms of this trust deed 
were much relied on by the counsel for the 
respondents, not only with reference to 
these congregational trusts, but also on the 
general question. The trust is that the 
building shall be enjoyed as a place of re¬ 
ligious worship by a congregation of the 
said body of Christians called the Free 
Church of Scotland or of any united body 
I of Christians composed of them and of such 
body or bodies of Christians as the Free 
Church may at any time hereafter associate 
with themselves under the aforesaid name 
of the Free Church of Scotland, or under 
whatever name or designation they may as¬ 
sume. The operative part of the deed is 
preceded by a long historical narrative, 
which is interesting, and appears to me 
rightly to define the position and constitu¬ 
tion of the Free Church, but it does not 
appear to me to carry the case further than 
the facts themselves do. Nor do the terms 
of the trust seem to affect the general ques¬ 
tion beyond showing that it was in the 
contemplation of the parties that the Free 
Church might unite with some bodies of 
Christians. With regard to the congregation¬ 
al property I feel more difficulty. I think 
the soundest view, how'ever, is to hold that 
there is a general over-riding trust for the 
purposes of the Free Church, and it was not 
intended that the majority controlling the 
Free Church might, by subverting the basis 
of the Church, divert the trust of the con¬ 
gregational property. I think, therefore, 
that the Union here contemplated, must be 
taken to be one with other Churches which 
might properly be made without detriment 
to the distinctive tenets of the Free Church. 
More than one union of that character has 
in fact been made without objection. For 
the reasons I have given. I am of opinion 
; that all the appeals should be allowed. 


^ *25 ^5 


Lord James Reviews 


Case c 


T --d James of Hereford said: My Lords, 
In cases before your Lordships for decision 
the secular Courts have been appealed to 
for the purpose of determining differences 
that have arisen between two sections of 
the Church until lately known as the Free 
Church of Scotland. The jurisdiction of the 
Courts, and therefore of your Lordships, to 
determine such differences proceeds from the 
fact that property held by trustees upon 
certain trusts has lately been dealt with, 
or sought to be dealt with, for the purpose 
of carrying out a uniou between the Free 
Church of Scotland and another body known 
as the United Presbyterian Church, and the 


pursuers in the Court below—the appellants 
before your Lordships—allege that the ap¬ 
plication of the properties in question to 
the purposes of the Churches thus united 
constitutes a breach of the trusts under 
which the properties are held. It is ob¬ 
vious that the first step tow'ard the elucida¬ 
tion of the question before your Lordships’ 
House is to determine the nature of the 
trusts controlling the properties in question. 
In order to do so a brief reference to facts, 
some , of which have become historical, is 
necessary. Prior to 1843 the Presbyterian 
Church of Scotland was in existence as the 
Established Church. But grave questions 


deeply affecting Unc minds and opinions of 
some of its members had come into exist¬ 
ence. The Protest of the General Assembly 
of the Free Church, dated May IS, 1843, com¬ 
plains: 

“That the Courts of the Church by law 
established and the members thereof are 
liable to be coerced by. the civil Courts in the 
exercise of their spiritual functions, and in 
particular in the admission to the office of 
the holy ministry and the constitution of the 
pastoral relation, and that they are subject 
to be compelled to intrude ministers on re¬ 
claiming congregations in opposition to the 
fundamental principles of the Church and 


























THE SCOTTISH FREE CHURCH CASE. 


17 


the Word of God, and to the liberties of 
Christ’s people.” 

On this ground, and apparently on this 
ground only, a large number of the members 
of the Established Church seceded from it 
arid formed themselves into a new body under 
the name of the Free Church. As far as 1 
know the seceding body adhered to all the 
tenets and views of the Establishment, ex¬ 
cepting upon the above question of secular 
interference with the spiritual affairs of the 
Church. Upon the Free Church thus consti¬ 
tuted as a whole, and upon certain congre¬ 
gations of it, considerable property has been 
conferred by different settlers and donors. 
The case set up by the pursuers is that these 
properties are held under certain trusts, that 
those who conferred the properties upon the 
Free Church intended that they should be 
applied for the purposes of that Church as it 
existed at the time when the transfers of 
property were made. It is also alleged that 
the Free Church, having united with another 
body known as the United Presbyterian 
Church, has so varied its conditions as to 
cease to retain its original identity. In the 
Courts below reliance in support of this con¬ 
tention was almost entirely placed upon the 
argument that a fundamental difference ex¬ 
isted between the. two Churches in this— 
that the Free Church acknowledged and as¬ 
serted the principle of an Established Church 
while the United Presbyterian Church con¬ 
demned that principle and was to the fullest 
extent a Voluntary Church, accepting Volun¬ 
taryism as a necessary and fundamental prin¬ 
ciple of its faith. 

Foundations of tlie Cburcli. 

Such being the case presented in the 
Courts below and at the bar of your Lord- 
ships' House by the pursuers, it is necessary 
first to determine to what extent the Free 
Church was based upon the principles of Es¬ 
tablishment. But before entering upon suen 
inquiry it is, 1 think, worthy of remark that 
the Church is not a positive defined entity, 
as would be the case if it were a corpora¬ 
tion created by law. It is a body of men 
united only by the possession of common 
opinions, and if this community of opinion 
ceases to exist the foundations of the Church 
give way. But difference of opinion to pro¬ 
duce this result must be in respect of funda¬ 
mental principles, and not of minor matters 
of administration or of faith. The basis of 
the Established Presbyterian Church was 
the Westminster Confession of Faith. At 
the time of the Disruption in 1843 full ad¬ 
hesion to the principles of this important 
document was declared by the seceders. Ar¬ 
ticle HI of Chapter XXIII of ihe Westmin¬ 
ster Confession is as follows: 

"The civil magistrate may not assume to 
himself the administration of the Word and 
Sacra~ents or of the Power of the Keys of 
the Kingdom of Heaven, yet he hath author¬ 
ity, and it is his duty to take order that 
unity and peace be preserved in the Church, 
that the truth of God be kept pure and en¬ 
tire, that ail blasphemies and heresies be 
suppressed, all corruptions and abuses in 
worship and discipline prevented, or reform¬ 
ed, and all the ordinances of God duly set¬ 
tled. administered and observed; for the bet¬ 
ter effecting whereof he hath power to call 
synods, to be present at them and to provide 
that whatsoever is transacted in them be 
according to the mind of God. ’ 

It seems that this article clearly enun¬ 
ciates the principle of an Establishment, and 
that this principle, as distinguished from its 
application, htrs never been repudiated by 
these who formed the Free Church. But the 


opinion of any one on that point at the pres¬ 
ent day is of but little importance com¬ 
pared with the views expressed by those who 
founded that Church. Clear and distinct ex¬ 
pression of those views can be found, in the 
first place, in the Claim Declaration, and 
Protest issued on May 30, 1842. tl is stated. 

“Whereas it is an essential doctrine of 
this Church, and a fundamental principle in 
its constitution, as set forth in the Confes¬ 
sion of Faith thereof in accordance with the 
Word and Law r of the Most Holy God that 
there is no other Head of the. Church but 
the Lord Jesus Christ (Chapter xxv., section 
6), and that while God the Supreme Lord 
and King of all the world has ordained civil 
magistrates to be under Him over the peo¬ 
ple for His own glory and the public good, 
and to this end hath armed them with the 
power of the Sword (Chapter xxiii., section 
1), and while it is the duty of people to pray 
for magistrates, to honor their persons, to 
pay them tribute and other dues, to obey 
their lawful commands and to be subject to 
their authority for conscience sake, from 
which ecclesiastical persons are not exempt¬ 
ed (Chapter xxiii., section 4), and while the 
magistrate hath authority, and it is his duty 
in the exercise of that power which alone is 
committed to him—namely, the power of the 
Sword of Civil Rule, as distinct from the 
Power of the Keys, or spiritual authority, 
expressly denied to him, to take order for 
the preservation of purity, peace, and unity 
in the Church, yet the Lord Jesus as King 
and Head of His Church hath therein ap¬ 
pointed a government in the hand of church 
officers distinct from the civil magistrate, 
which government is ministerial, not lordly, 
and to be exercised in consonance with the 
laws of Christ and with the liberties of His 
peoplp." 

And again in the same document, at page 
3!) of the appendix, there appears as lot- 
lows: 

“And whereas this Church highly valu¬ 
ing. as she has ever done, her connection, 
on the terms contained in the statutes here¬ 
inbefore recited, with the state, and her 
possession of the temporal benefits thereby 
scured to her for the advantage of the peo¬ 
ple, must nevertheless, even at the risk and 
hazard of the loss of that connection and of 
these public benefits—deeply as she would 
deplore and deprecate such a result for her¬ 
self and the nation—persevere in maintain¬ 
ing her liberties as a Church of Christ.” 

Then in the Protest of May 18. 1843, we 
.read: 

“And finally, while firmly asserting the 
right and duty of the civil magistrate to 
maintain and support an Establishment of 
religion in acc.oruance witu Lod s word and 
reserving to ourselves and successors to 
striv* by all lawful means, as opportunity 
shall, in God’s good providence, be offered, 
to secure the performance of mis but ac¬ 
cording to the Scriptures.” 

Yet the document proceeds to announce 
separation. Again, in the pastoral address is¬ 
sued by the General Assembly of the Free 
Church on that same day. May 18, 1843, it 
is stated: 

“Long w-as it the peculiar distinction and 
irgh glory of the Established Church of 
Scotland to maintain the Sole Headship of 
the Lord Jesus Christ, His exclusive Head¬ 
ship in the Church which is His kingdom 
and bouse. It was ever held by her, in¬ 
deed, that the Church and the State, being 
equally ordinances of God and having cer¬ 
tain objects connected with His glory and 
the social welfare, might and ought to unite 
in a joint acknowledgment of Christ and 


on the employment of the means and rea¬ 
sons belonging to them respectively for 
the advancement of His cause. But, while 
the Church in this manner might lend her 
services to the State, and the State give its 
support to the Church, it was ever held as a 
fundamental principle that each still re¬ 
mained and ought, under all circumstances 
to remain, supreme in its own sphere and 
independent of the other. On the one hand 
the Church, having received her powers of 
internal spiritual government directly from 
her Divine Head, it was held that she must 
herself at all times exercise the whole of 
it under a sacred and inviolable respoir 
bility to Him alone, so as to have »o power 
to fetter herself by a connection with the 
State or otherwise in the exercise of her 
spiritual functions. And in like manner as 
regards the State the same was to be held to 
be true on the same grounds and to the very 
same extent in reference to its secular sov¬ 
ereignty. It was maintained that as the 
spiritual liberties of the Church bequeathed 
to her by the Divine Head were entirely be¬ 
yond the control of the State, so. upon the 
other hand, the State held directly and ex¬ 
clusively from God, and was entitled and 
bound to exercise under its responsibility to 
Him alone, its entire secular sovereignty, 
including therein whatever it was competent 
for or binding upon the State to do about 
sacred things or in relation to the Church, 
as for example, endowing and establishing 
the Church and fixing the terms and condi¬ 
tions of that establishment.” 

Dr. Clialmer* and Establishment. 

But perhaps the most explicit declaration 
on the subject of the principle of Establish¬ 
ment is to be found in the words of Dr. 
Chalmers, rendered authoritative by their 
circulation by the orders of the General As¬ 
sembly of May, 1843. My Lords, those are 
the words which were read by the noble 
and learned Lord on the Woolsack, where 
Dr. Chalmers says “the Voluntaries mistake 
us if they conceive us to be Voluntaries,” 
and, therefore, I do not read them again. 
To these declarations of Lord Chalmers I 
feel great importance should be attached. 
Apart from the fact that they were issued 
under the authority of the General Assembly, 
Dr. Chalmers was specially appealing Tor 
material support for the Free Church as a 
seceding body—and I know nothing more 
likely to influence the generosity of donors 
than the eloquent appeal of such a man as 
Dr. Chalmers. From him those who gave 
would seek both guidan.ee and information 
as to the body upon which their gifts would 
be conferred. Then, in December 1843. tlie 
Assembly of the Free Church, replying to the 
address from the Congregational Churches 
of North Wales, said: 

“But you misapprehend the nature of the 
movement we have made in supposing that 
we have in the last degree altered our views 
respecting the lawfulness and desirableno;;* 
of a right connection between Church and 
State." 

That the Established principle was adhered 
to by the Free Church seems to have been 
accepted in the Court below. Lord Trayr.er 
in Ills judgment says: 

“It is not open to doubt that the Free 
Church from its constitution, in 1843, down 
at least to its union with the United Pres¬ 
byterian Church professed the Establish¬ 
ment principle.” 

Even the separation from the Estab¬ 
lished Church was apparently intended to 
be of a temporary character only, becauaa 






18 


THE SCOTTISH FREE CHURCH CASE. 


we find in the claim and protest of May SO, 
1S42, the following: 

“But that it shall be free to the mem¬ 
bers of this Church, or their successors, at 
any time hereafter when there shall be a 
chance of obtaining justice, to claim the 
restitution of all such civil rights and priv¬ 
ileges, and temporal benefits, and endow¬ 
ments, as for the present they may be com¬ 
pelled to yield up in order to procure to 
their office-bearers the best exercise of 
their spiritual government and discipline, 
and to their people the liberties of which 
respectively it lias been attempted so con¬ 
trary to law and justice to deprive them.’’ 

Such being the declaration of the seceders 
at the time of the Disruption, I can find no 
departure from such views at any time be¬ 
fore the union with the United Presbyter¬ 
ian Church. On the contrary, between the 
years 1842 and 1900 repeated declarations 
or adhesion to the principle of Establish¬ 
ment were made on behalf of the Free 
OJiurch. I have thus dealt at length with 
the position accepted by the Free Church in 
reflation ' to Establishment, and the result 
seems to be that the seceders of 1843, hav¬ 
ing belonged to the Established Church, se¬ 
ceded from it, not because it was an Es¬ 
tablished Church, but because the principle 
of the Establishment within it had become 
vitiated. To the principles of Establish¬ 
ment the seceders still fully adhered, and 
to the Established Church itself they would 
gladly have returned as scon as 
there was afiy discontinuance of the inter¬ 
ference with spiritual government, which 
they regarded as vitiating the true princi¬ 
ples of Establishment. It still has to be 
considered whether the principle was essen¬ 
tial and fundamental or a mere matter of 
policy. It is difficult to define any positive 
standard between an essential and a non- 
essential principle, but surely there is a great 
gulf between the principle of Establishment 
and that of Voluntaryism. It seems to me that, 
having read the declaration of the General 
Assembly, and the distinct utterances of Dr. 
Chalmers, scant justice would be done to 
the eloquent leaders of the secession move¬ 
ment of 1843 if we construed them as treat¬ 
ing the Establishment principle as being 
non-essential or unimportant. Still more 
important is it to consider what was the 
view of the importance of the principle en¬ 
tertained by those donors who may have 
listened to the appeal of Dr. , Chalmers. 
Would they have regarled it as non-essen¬ 
tial? Would they have endowed a Church 
pledged to Voluntaryism? I think not. It is 
a much easier task to gather the views of 
the United Presbytciian Church on the sub¬ 
ject of Establishment. That Church came 
into existence in the year 1847 by virtue of 
the union of two Churches which had pre¬ 
viously seceded from the Established Church. 
It is not denied that from the first to last 
the United Presbyterian Church has existed 
without connection with the State, and as a 
Voluntary Church, accepting as a fundamen¬ 
tal principle that of Voluntaryism. A most 
emphatic declaration in favor of that prin¬ 
ciple was made as late as 1897, in the tract 
No. XXV, issued by the United Presbyterian 
Church. Again I quote Lord Trayner’s au¬ 
thority in the Court below. He says that it 
is not open to doubt. 

“That the United Presbyterian Church 
throughout the whole period of its existence 
has repudiated the principle of Establish¬ 
ment, and, professed instead the principle of 
.Voluntaryism.” 

Entertaining these different views, the 
Free Church and the United Presbyterians 


have taken steps, seemingly correct in form, 
to become united under the name of the 
United Free Church, and this union is sought 
by the majority, who support it, to be im¬ 
posed on the minority, who, o.bject to be¬ 
come members of the new United Church, 
and to take effect upon property held by the 
Free Church, so as to transfer it to the new 
body, the United Church. . 

Freedom to Differ. 

Apparently it was sought to make the 
union subject to a reservation, so as to 
leave an independent and different judg¬ 
ment to members of the two Churches. 
Clause 3 of the Declaration of the United 
Assembly is as follows: 

“As this union takes place on the footing 
of maintaining the liberty of judgment and 
action heretofore recognized in either of 
the Churches uniting, so in particular it is 
hereby declared that members of both 
Churches, and also of all Churches which in 
time past have united with either of them, 
shall have full right as they see cause to 
assert and maintain the views of truth and 
duty which they had liberty to maintain in 
the said Churches.” 

But this freedom to differ, whilst admitting 
the differences, does not lessen or remove 
them. The United Free Church, as a whole, 
holds within it neither the principle of Es¬ 
tablishment nor of Voluntaryism. Such 
questions were to be open questions, but the 
man who as a member of the Free Church 
had accepted the views of a Church which 
claimed Establishment as one of its funda¬ 
mental principles, may well object when he 
is told that he shall no longer belong to a 
Church holding that principle, but that he 
must under compulsion join a Church wherein 
members of it may think as they will on this 
broad subject, and must, whether be wishes it 
or not, be in communicn with the supporters 
of the Voluntary system to the same extent 
as if they had adherents to the principle of 
Establishment in accordance with the tenets 
of the Free Church. My Lords, we must 
recollect that we are dealing with property 
applied to the use of men in return foi serv¬ 
ice rendered as ministers of the Free Church, 
to the use of men who have , adhered to the 
tenets of that Church, who have changed 
nothing, who have varied nothing. From an 
answer I received from counsel at the bar, 
I learnt that the refusal of these ministers 
to become members of this mixed body was 
treated as a matter of discipline, and so the 
sentence for thus adhering to an old unaltered 
faith apparently amounts to deprivation. 
That this is so seems to proceed from the 
effect of the Act of October 30, 1900, whereby 
it was resolved that the whole property of 
the Free Church should be transferred to. 
and belong to, the United Free Church. The 
assertion that the dissenting minority, by so 
dissenting, ceased to be members of the Free 
Church, and lost, and forfeited all their rights 
and privileges as members thereof, is to be 
found at statement 15 of the defenders’ case. 
The sentence thus imposed upon the ministers 
who adhered to their old opinions is some¬ 
what draconic. . 

“They separated and cut themselves off 
from the said Church.” says the statement of 
the defenders, “and by so doing lost and for¬ 
feited all their rights and privileges as mem¬ 
bers thereof. They do not constitute or rep¬ 
resent the Free Church Scotland. They 
have no right or title to any property which 
belonged to the said. Free Church of Scot¬ 
land. They are hot members of the United 
Free Church of Scotland. They have no 
right or title to any property belonging to 
it.” 

My Lords, there are one or two subjects 


that must be dealt with. Lord Trayner in 
his judgment says: 

“But as to that, the Establishment prin¬ 
ciple had been explicitly declared in 1843 to 
be an essential principle of the Free Church. 
I think the Church had the power to abandon 
that principle, and to that extent alter that 
principle.” 

From this view I differ, because, regarding 
essential as meaning fundamental, I do not 
think that a Church can change such funda¬ 
mental principles and yet at the same time 
preserve its identity. The retention of the 
name does not preserve identity, and yet the 
change of principles might be so great as 
to leave nothing but the name of the Church. 
I think, toof it was admitted by way of ex¬ 
ample that if change had introduced the doc¬ 
trines of the Church of Rome the identity* of 
the Free Church would be lost. And surely 
this view brings us back to the question 
whether there has be n any change of a fun¬ 
damental or vital principle of the Church, 
and to this an answer has been given . 

Tl»e Model Trust Deed. 

An important document—the Model Trust 
Deed of November, 1844—has also to be dealt 
with. The respondents naturally rely upon 
it as showing that at the very time of the 
secession it was contemplated that the Free 
Church might unite with other Churches. I 
agree that this is so. for the deed sets out a 
trust in favor of the congregations. 

“Of the said body of Christians called the 
Free Church of Scotland, or of any united 
body of Christians composed of them, and 
of such other body or bodies of Christians 
as the said Free Church may at any time 
hereafter associate with themselves. 

Even if the Model Deed contained no such 
reference to union with other Churches, I 
should regard the power as existing, for I 
agree with Lord Young when he says in his 
judgment that 

“Any two or more Churches may law- 
full w unite so as to form one Church, and 
that nothing more is necessary to the union 
than their own consent, which they are re¬ 
spectively free to give or withhold.” 

Doubtless that is so in respect of the mere 
legality of the act of uniting, but different 
considerations are raised in these suits. We 
have to deal with the rights of property, 
with the execution of trusts, and we have to 
see that the objects the donors had in view 
are carried out. Such being the case, I do 
not think that the Model Trust Deed gives 
greater power of union than the Free Church 
possessed without it. The Church may unite 
and so says the Model Deed; but if prop¬ 
erty is sought to be transferred to the new 
body, the identity of the new body—that is, 
the Free Church after the union—must be 
maintained, and nothing in the deed gives 
a power to unite so as to bring into exist¬ 
ence a Church incapable of identity with the 
Free Church. And if this be so, we are re¬ 
called to the consideration of the main ques¬ 
tion -argued in this case. My Lords, great 
stress was laid at the bar upon the effect 
of an Act passed in the year 1C97 called 
the Barrier Act. It was argued that this 
Act conferred legislative powers upon the 
General Assembly in respect of matters of 
doctrine or worship, discipline or govern¬ 
ment, within the Church. I cannot agree 
in this view. The Act is entitled, “An Act 
anent the method of passing Acts of Assem¬ 
bly of concern to the Church and for pre¬ 
venting of innovation.” It is a procedure 
Act regulating the exercise of the exist¬ 
ing power of the Assembly, but conferring no 
new jurisdiction and increasing no powers. 


i 



















19 


THE SCOTTISH FREE CHURCH CASE. 


Doubtless the Assembly had before the pass¬ 
ing of the Act certain powers in respect of 
matters referred to, and it was thought de¬ 
sirable tc enact that such powers should 
only he exercised after full notice given. 
That is all the Barrier Act did. Certainly 
nothing within it gives any power to alter 
tile identity of the Church My Lords, I 
have not thought it necessary to enter upon 
any detailed statement of the law affecting 
the application of property left in trust for 
a voluntary body such as the Free Church 
was. It seems enough to say that sufficient 
guidance on that subject is to be found in 
the case of Craigdallie vs. Aikman, the 
decision in which case supplies principles 


applicable'to the present. Probably 1 have 
already conveyed to your Lordships the re¬ 
sults I have arrived at. After very earnest 
consideration of the facts before this House 
and of the very able argument presented at j 
this bar, I have come to the conclusion that 
the appellants are entitled to the judgment 
of your Lordships. That conclusion is found¬ 
ed upon the grounds I have above referred 
to. I am thus relieved from dealing with 
the second ground upon which the union of 
the Churches is attacked, and I am glad that 
there is no necessity for me to deal with 
that interesting but difficult problem pre¬ 
sented by the alleged difference of doctrine 
existing in the two Churches. 1 am aware 


that your Lordships’ duty is only to give 
judgment upon the strict issues raised before 
you. and that that judgment must lie w’here 
it falls. But even at the risk of exceeding 
j my duty, I venture to express the sincere 
hope that some way will be found to avoid 
the capture by either litigants of any spoils 
of war, and that hope is confident, because 
I believe that the primary, indeed the only, 
object of those who have united and those 
who have dissented has been to promote the 
interests of the Church, and that equally now 
■ will it be their care that the Church as a 
whole and the individual members of it 
shall in no degree suffer from the evems 
with which your Lordships have had to deal. 


Lord James Patrick Bannerman Robert¬ 
son on Property Rights. 


Lord Robertson said—“My Lords, in the 
elaborate arguments submitted to the House 
many questions have been discussed which 
involve difficult theological and historical 
inquiries. I have, as in duty bound, care¬ 
fully considered those various aspects of the 
controversy, and I have come to the conclu¬ 
sion that the case admits of decision and 
ought to be decided on grounds much more 
palpable and certain. The question is to 
whom does certain property now belong 
which was given to the denomination of 
Christians calling itself the Free Church of 
Scotland? That body was founded in 1843. 
It consisted of ministers and laity who se¬ 
ceded from the Established Church of Scot¬ 
land on certain questions of Church polity, 
but who professed to carry with them all 
the doctrine and system of the Established 
Church, only freeing themselves by seces¬ 
sion from what they regarded as intolerable 
encroachments by the law courts upon the 
Church’s spiritual functions. Rightly or 
wrongly the theory of the Free Church was 
that they, and not the Established Church 
were the Church of Scotland. The Church thus 
set up was endowed by the liberality of its 
members with the property now in dispute. 
Two competitors now claim it. Of the re¬ 
spondents the first remark to be made goes 
to the very root of their claim. They are not 
either in name or composition the Free 
Church of Scotland. They are not even the 
majority of the Free Church, . but the 
assignees of the majority of the Free 
Church. They are a body formed in 1900 by 
the fusion of the majority of the Free Church 
with another body of Presbyterian dissenters, 
the United Presbyterian Church. The prop¬ 
erty of the Free Church is claimed by this 
composite body, who, to the extent of a third 
or some large proportion (for the particulars 
are not before us, and are unimportant), is 
composed of United Presbyterians of this 
new body. It may be affirmed nearly as 
truly that it is United Presbyterian as that 
it is Free Church, and its name, “The United 
Free Church,” suggests the fact. Now, 1 
do not attach conclusive importance to the 
name, but it is important, and still more 
significant. In any view the change of name 
and the fact of fu-eioh put it on the respon¬ 


dents to prove their identity with the original 
Lenefieiaries. They have to do this, too, not 
in a question with the heirs at law of the 
founders, but in competition with an exist¬ 
ing body of ministers and members of the 
original Free Church, who have simply stayed 
where they were, and about whose pedigree 
there is no dubiety. For reasons to be after¬ 
ward stated, it is not too lightly to be as¬ 
sumed that such unions are within the com¬ 
petency of any majority, however large, even 
if there existed no essential differences be¬ 
tween the uniting bodies. The present, how¬ 
ever, is not a case in which (as in some in¬ 
stances which will presently be examined in 
detail) the Free Church has absorbed smaller 
Presbyterian bodies, holding all her own 
pristine principles, and has done so without 
any change in her name or formularies. The 
United Presbyterian Church treated with, 
and joined, the Free Church not only for¬ 
mally, but in fact on at least equal terms. 
The two bodies w'hich met to consummate 
the union enacted and declared that the Free 
Church 

“Do and shall henceforth constitute one 
united Church, that the name of the united 
Church shall be the United Free Church of 
Scotland, and that its supreme Court shall 
be designated the General Assembly of the 
United Free Church of Scotland.” 

From these proceedings it resulted that so 
far as the respondents were concerned the 
Free Church judicatories ceased to exist, 
their places being taken by Kirk Sessions, 
Presbyteries, Synods, General Assemblies of 
the new Church, composed in part of gentle¬ 
men who formerly were United Presbyte¬ 
rians, and in part of gentlemen who formerly 
were Free Churchmen. On the 30th October, 
1900, the General Assembly of the Free 
Church made over the whole property of the 
Free Church to the United Free Church. On 
the following day, 31st October, 1900, the 
General Assembly of the new Church pro¬ 
ceeded to set up a new formularly for the 
admission of their preachers, which had been 
preconcerted and matter of treaty. Whereas 
a probationer of the Free Church used to be 
required to affirm his belief that “The whole 
doctrine of the Confession of Faith is the 
truths of God,” the United Free Church pro¬ 


bationer requires to affirm his belief in “the 
doctrine of this Church, i. e., the United 
Free Church” (set forth in the Confession of 
Faith). The elasticity of “the doctrine of 
the Unted Free Church” is thus made the 
object of belief, is ascertained by the fact 
that the various matters of agreement be¬ 
tween the Churches with a view to union 
were declared by the United Assembly to be 
“Accepted and enacted without prejudice to 
the inherent liberty of the United Church as 
a Church of Christ, to determine and regulate 
its own constitution and laws as duty may 
require, in dependence on the grace of God 
and under the guidance of His holy word.” 

The United Free Church probationer has 
also to affirm the general principles of the 
(United Presbyterian) • “Basis of Union, 
1847,” as well as those of the (Free Church) 
“Claim of Right of 1842,” to be principles 
sanctioned by the Word of God and the sub¬ 
ordinate standards of the Church. I do not 


at present comment on the importance of 
such changes, but note them as showing that 
the constitution of the new Church is a new 
constitution, enacted not by the Freo 
Church, but by the new and composite body, 
and adapted to the exigencies of the Pres¬ 
byterians. Another matter of salient im¬ 
portance demands attention. One of the re¬ 
citals in the Act of General Assembly of the 
Free Church by which they authorized the 
union >s that— 

“The committees of the two Churches hav¬ 
ing met and communicated to one another 
the existing doctrinal standards, rules, and 
methods of the two Churches, it appeared 
that in regard to doctrine, government, dis¬ 
cipline, and worship therein set forth a re¬ 
markable and happy agreement obtained be¬ 
tween them, and also in particular in the 
views of the two Churches in respect to the 
spirituality and freedom of the Church of 
Christ, her subjection to Him as her only 
Head, and to His word as her supreme 
standard, and that an incorporating union 
might harmoniously be accomplished.” 

There is no profession of identity, but c«f 
an “agreement” having been “obtained,” 
which is described as “remarkable.” 


The Establishment Question. 

Now, the steps and stages of these long 
negotiations are before the House, «.ud 


















20 


THE SCOTTISH FREE CHURCH CASE. 


from those it appears that on this question 
of •establishment there were in 1863 and in 
1867' sharp differences The tenets of the 
two bodies are printed in parallel columns 
in the printed papers, and I am going short¬ 
ly to refer to them. Nothing before the 
House shows or suggests that the United 
Presbyterians departed by an iota from 
their own doctrine. On the other hand, 
there is no avowal by the Free Church that 
she departed from the .position formulated 
in the parallel columns. What was done 
was simply to drop the subject and unite. 
While such is the name, such the composi¬ 
tion of the respondents' body, the position 
of the other competitor, the appellants, is 
very much simpler. They are those minis¬ 
ters and laity of the Free Church who did 
not concur in the union of 1900, but pro¬ 
tested against it. They have done nothing 
hut remain where they were, holding to the 
letter all the doctrines of the Free Church, 
adhering to it as an institute, and continu¬ 
ing its existence according to the measure 
of tfieir powers. They say that in the event 
which has happened they are the Free 
Church—their brethren having left them 
for this new Church, just as those brethren 
might have left them for the Establish¬ 
ment or for the Eniseopalians. They have, 
however, been declared by the respondents 
no longer to be of their communion, and 
their manses and churches have been form¬ 
ally claimed by the respondents for their 
own exclusive use. The adherents of the ap j 
pellants are numerically few—some few 
thousands—but it has not been suggested 
that this introduces any legal difference 
from the situation as it would have been 
had they been more numerous. Since the 
days of Cyrus it has been held that justice 
is done by giving people not what fits them 
but what belongs to them. Such being in 
sketch the relative positions of the two 
claimants to this property, it is plain that 
the respondents can only succeed by mak¬ 
ing out that it wag an inherent quality of 
that Free Church to which this property 
was given, that it could transform itself in 
the way that I have described, and oust 
from the property those who desire to re¬ 
main where they were in principle, doctrine 
and organization. For let it not be forgot¬ 
ten that the contention of the respondents 
necessarily involves that the majority is 
entitled, not merely themselves, to retain 
the property, but also (1) to introduce the 
United Presbyterians as beneficiaries, and 
(2) to oust the dissentient minority from 
the benefits of the foundation. This is why 
I protested at. the outset against the too 
ready acceptance of the doctrine that 
“union’' is competent to a majority. In 
considering this contention I steady myself 
by. dwelling on an observation very fre¬ 
quently repeated by the Dean of Faculty in 
his able speech for the respondents. 

“This case,” said the Dean, “differs from 
all previous cases in the same region of law 
in this—this is a gift to a Church, not to 
a congregation, for the promotion of certain 
doctrines, but to a Church named and desig¬ 
nated.” 

I think there is great force in this, but In 
another way from that intended. This prop¬ 
erty was given to the Free Church, an exist¬ 
ing Church, complete within itself as an 
ecclesiastical organization, and separate 
from other Churches. This becomes extreme¬ 
ly clear when it is remembered that there 
were already existing at the moment of the 
Disruption the two dissenting Presbyterian 
bodies which now form the United Presbyte¬ 


rian Church, and that the incorporation of 
those two into the United Presbyterian 
Church took place in 1847, during those early 
•years of (he Free Church when this property 
was being accumulated. Those dissenting 
bodies were st> far as worship, doctrine, dis¬ 
cipline and government were disclosed in 
i their standards, exactly the same as the 
Free Church which was set up side by side 
with them. Accordingly, if we knew nothing 
to corroborate the infererice which this gives 
rise to, the broad fact that the Free Church 
was set up as an independent Church, sep¬ 
arate fronj those with whom the recent union 
has now been effected. Therefore, with the 
Dean of the Faculty, I say this property was 
given to a particular Church, and it is very 
difficult to see that it will do to end that 
Church, and then, picking up most of her 
doctrines, come forward to claim that United 
Presbyterian and Free Church alike shall 
share as members of a body which is not 
even called Free Church. 

Foundation of tlie Free Cliuroli. 

When the history of the foundation of the 
Free Church is more closely examined we 
see that it was not fortuitously, or' from 
mere lcve of separation, that the Free 
Church was founded and endowed as a 
Church separate from the two confluents 
of the United Presbyterian Church. Those 
existing dissenting bodies held opinions 
about Church government and Church and 
State which were inherited and carried for¬ 
ward by the United Presbyterian Church, 
and in 1843 they, as after 1847 their suc¬ 
cessor the United Presbyterian Church, 
were the exponents in Scotland of Voluntary 
principles. By this, as it ought io be un¬ 
necessary to say, I mean not merely that in 
fact they were not endowed by the State, 
but that they were opposed on principle to 
the endowment of religion by the State. It 
is honorable to the United Presbyterian 
Church that, in good times and in bad, it 
has never used ambiguous language or 
nicely balanced phrases about this matter, 
and has never sailed under false colors. All 
through the negotiations with the Free 
Church, as before them, it was strenuous 
and busy in “diffusing a knowledge of the 
Voluntary principles of the Church.” It 
year by year upheld “the Church’s tes¬ 
timony on the proper relations of Church 
and State, and in favor of religious equality 
by disestablishment and disendowment,” 
and “renewed the testimony of 1847, con¬ 
stantly maintaining that it is not within 
the province af civil government to provide 
for the religious instruction of the subject.” 
In order, once for all, to ascertain precisely 
the true position of the United Presbyterian 
Church upon these subjects, it is convenient 
to read the statement of their distinctive 
principles made by their committee when 
negotiating for union with the Free Church 
in 1867, and the passage has a special value, 
because in the circumstances it was not 
likely to contain overstatements on contro¬ 
versial points. It stands out, also as a 
landmark, because it has never to this day 
been abandoned by the United Presbyterian 
Church, either before, in, or after their 
union with the Free Church. Here is what 
is said: 

“That it is not competent to the civil 
magistrate to give legislative sanction to 
any creed in the way of setting up a civil 
establishment of religion, nor is it within 
his province to provide for the expense of 
administrations of religion out of the na¬ 
tional resources; that Jesu.s Christ as sole 
King and Head of His Church has enjoined 


upon His people to provide for maintaining 
and extending it by freewill offerings,” and 
so on. 

All of this declaration is very clear, but 
the closing sentence has a special signifi¬ 
cance in regard to the whole of the present 
cai?e. On paper the United Presbyterian 
Church held just the same general doctrines 
as the other Presbyterian Churches. Like 
them, she held the Scriptures to be the only 
rule of faith. As with them so with her, the 
Westminster Confession and Catechism were 
her confession and catechism. None of her 
formularies made mention of Voluntaryism, 
or exacted the profession of that principle 
from her office-bearers of members. The 
learned judges whose decision is now under 
review, would, I suppose, have thought that 
this fact removed all ground of division be¬ 
tween the Voluntary bodies and the Free 
Church bodies in 1843. But the founders of 
the Free Church were not content w r ith these 
criteria of the distinctive notes or testi¬ 
monies of a Church, ai d though declined to 
coalesce with Voluntaries, although Volun¬ 
taryism was not then any more than now a 
term of communion in those bodies. “The 
affectionate representation of the Free 
Church of Scotland, 1843,” is conclusive on 
this point, and it has a peculiarly direct au¬ 
thority and relevance in the present contro¬ 
versy. It has been called, and I think accu¬ 
rately, “the prospectus” of the new Church, 
and it states the grounds and principles on 
which support was asked for it. Now, this 
manifesto, or prospectus, discusses this very 
question of the proper relations of the Free 
Church to the Dissenters who now form the 
United Presbyterian Church. The manifesto 
seems to anticipate the not unnatural objec¬ 
tion to the formation of a new Church that 
here were existing orthodox Presbyterian 
Churches—Why not join them? The answer 
is conclusive—That would be againat our 
principles. And in two very eloquent pages 
—for the writer was Dr. Chalmers—the Es¬ 
tablishment principle is urged upon those ad¬ 
dressed in the most peremptory terms as 
being <still binding on them as “a doctrine 
or article of faith.” The Voluntaries are 
warned that they mistook the Free Church 
if they conceived them to be Voluntaries; 
and it is emphatically asserted for the Free 
Church that 

“Though we quit the Establishment, we go 
out on the Establishment principle. We 
quit a vitiated Establishment, but would re¬ 
joice in returning to a pure one.” 

The same attitude is politely but firmly 
expressed in the General Assembly’s replies 
to the various bodies of Voluntaries who ad¬ 
dressed the Free Church with congratula¬ 
tions at the time of the Disruption. They 
are all asked not to mistake the Free Church 
for Voluntaries. The conclusion which I 
draw from all this is that it was of the es¬ 
sence of the foundation to which this proper¬ 
ty belongs that it should be a Church sepa¬ 
rate from Voluntary Dissenters. On broader 
grounds, though closely connected, it is dif¬ 
ficult to see how the pretensions of the Free 
Church, such as they were, could have been 
embodied in anything but a Church of her 
own. Her theory was that she w r as amid 
right hand and left hand defections, the 
Church of Scotland—the Church of the first 
and the second Reformations—the burning 
bush never consumed. 

A Noble Claim to Allegiance. 

With all Presbyterians this is a noble 
claim to allegiance. Nor was it the less in¬ 
spiring in 1843, because the Church had been 
(as the held) Unjustly deprived of the bene- 











THE SCOTTISH FREE CHURCH CASE. 


21 


fits of Establishment, and her loyalty to the 
principle of national religion was proving it¬ 
self to be of the sort that is true, although 
it be not shone upon. Now, in dealing with 
the question before your Lordships’ House, 
it is necessary from the outset to bear firm¬ 
ly in mind that the Establishment principle 
can be held by Churches that in fact are un¬ 
connected with the State, and are in fact 
supported by voluntary contributions alone. 
I should have thought this the necessary hy¬ 
pothesis of the whole question, as we have to 
do with a Dissenting Church; but in two 
passages of the learned Judge’s opinions, af¬ 
terward to be adverted to. this seems to be 
forgotten. Again, the Intrinsic importance 
of any particular doctrine in relation to the 
general body of Christian teaching is no cri¬ 
terion of whether it is or is not an essential 
or fundamental doctrine in a particular 
Church and least of all in Scotland. It is 
not its own importance, but the place as¬ 
signed to it in the foundation of the new 
Church, that has go* to be ascertained. I 
dwell on this for a moment, and illustrate it 
from the case in hand. Whether the Es¬ 
tablishment principle is, or is not, a funda¬ 
mental doctHne of the Free Church is the 
dispute in this case; but there is no doubt 
at all that the claim of the Free Church as 
against the Law Courts (I put it shortly) is 
of the essence of her foundation. This ques¬ 
tion is settled not because the judges of 
your Lordships so appraise that doctrine in 
colnparison with all the various doctrines 
of faith and morals set out in the Confes¬ 
sion of Faith, but because that was the un¬ 
doubted ground on which the new Church 
was set up. Now, I observe in Lord Low's 
very able judgment that he makes much of 
the fact that here were two Churches identi¬ 
cal in doctrine, worship, and form of gov¬ 
ernment, and they were working together 
In the same field, so that their agencies 
overlapped and their efforts were to some 
extent wasted; and his Lordship goes on to 
speak of the duty of unity among Chris¬ 
tians. This is all very true, but then 
these considerations were full in view of 
the founder of the Free Church. This is 
not a case where the new Church was set 
up in Scotland to preach the gospel to peo¬ 
ple who were npt within reach of the com¬ 
mon doctrines of Christianity, or even of 
Calvinistic Christianity. Tn the theory of 
the founders of the Free Church, it was in¬ 
tolerable that these adherents, although 
agreeing in all other matters, should con¬ 
tinue to worship along with those who were 
content that the Court of Sessions should 
force the Presbytery to ordain the patron’s 
presentee, and do all the various things 
which led to the Disruption., In fact, again 
they set up their Churches side by side 
with those of the other Presbyterian todies 
who also held exactly the same doctrinal 
standards, and the evil consequences of 
having two separate Churches, instead of 
one, which Lord Low adverts to, being pal¬ 
pable and flagrant, then, as now, the just 
inference seems to be that the founders of 
the Free Church deemed the difference be¬ 
tween themselves and the Voluntaries so 
vital that the duty of Christian unity must 
give way to the more imperious duty of 
Christian fidelity to truth. In the same 
fashion the older secessions had taken 
place on questions not about any of the doc¬ 
trines of personal religion, or theology, but 
about Church polity questions. 

Polity and Separation. 

Polity had, in short, been in Scotland often 
made the causes of separation between 


Churches, and in 1834 this unquestionably 
was again the case. The only question was, 
Was the doctrine of polity on which the Free 
Church was founded solely what was called 
spiritual independence, or did it not also 
comprehend the Establishment principle" I 
am, of course, not to be understood as speak¬ 
ing in praise of separation (or for any doc¬ 
trine on one side or another of this dispute), 
but no one will understand the present case 
unless he receives inlo his mind the possi¬ 
bility of people valuing separation as a safe¬ 
guard for doctrines which they hold intense¬ 
ly. and as to which they know that the sur¬ 
rounding w’orld is indifferent or hostile. And 
the error of the respondents seems to me to 
be that:, shutting their eyes to the extremely 
special and limited raison d'etre of the Free 
Church, and contemplating themselves as a 
Christian Church, they measure the impor¬ 
tance of any doctrine in relation to Chris¬ 
tianity as a whole, and not with reference 
to their own distinctive origin. 


Spiritual Independence and E*tnl)li!ili- 

nien t. 

Another fallacy must be guarded against. 
To prove that spiritual independence is more 
important than the Establishment principle 
is only to prove that the latter is in impor¬ 
tance subordinate to the former, but it does 
not entitle us to call the Establishment prin¬ 
ciple a principle of subordinate importance. 
The true question, as I view the matter, is 
where the two doctrines (spiritual inde¬ 
pendence and Establishment) have not been 
made by the founders of the Free Church 
complementary parts of one doctrine. The 
instrument of the highest and most direct 
authority, as evidencing the position of the 
Free Church, is the protest of 1843. It was 
by the Act of Assembly enjoined on the 
Presbyteries to record this protest, together 
with the Act of Separation and Deed of 
Demission at the beginning of their Presby¬ 
tery books as the ground warrant of their 
proceedings. The protest seems to me on 
the face of it amply to support the affection¬ 
ate remonstrance (already referred to) in 
the assertion that "we come out on the 
Establishment principle.” The protest is 
that it shall be lawful to them, in the cir¬ 
cumstances in which they are placed, to 
withdraw from th e existing Establishment 
(as if this Act required defense). But they 
make this protest: 

’’While firmiy asserting the right and duty 
of the civil magistrate to maintain and sup¬ 
port an Establishment of religion in accord¬ 
ance with God’s Word, and reserving to our¬ 
selves and our successors to strive by all 
lawful means as opportunity shall, in God’s 
providence, be offered to secure the per¬ 
formance of this duty agreeably to the Scrip¬ 
tures”; and so on. 

Your Lorships have doubtless read the 
document as a whole, and there is nothing 
in the context which detracts from the sig¬ 
nificant and solemn emphasis of what I have 
quoted. They had come to the conclusion 
that, in the circumstances in which they 
found themselves, “a Free Assembly of the 
Church of Scotland as by law established 
cannot at this time be holden,” and there¬ 
fore only they came out. A claim, declara¬ 
tion, and protest of 1842 is referred to in 
the protest of 1843 as setting forth the true 
constitution of the Church. Now, Lord Low 
admitted that in this document also the 
Establishment principle is affirmed, remarks 
that it is in “a parenthetical way.” The 
simple explanation of the form of the sen¬ 


tence and of the lesser salieney of the posi¬ 
tion assigned to that principle, in this paper, 
is that it is a manifesto from, and by. an 
established Church. The motive of the 
paper is to protest against interference with 
adjudicatories of that Church. Accordingly 
the hypothesis is that Establishment, as a 
principle, requires no vindication or asser¬ 
tion, and it, in fact, only enters the argu¬ 
ment when the loss of Establishment is re¬ 
ferred to as one of the national dangers im¬ 
pending. But the references in this connec¬ 
tion are of unmistakable import. The un¬ 
qualified language of the protest of 1843— 
the document which, as we have seen, each 
Presbytery was to take as the warrant for 
its proceedings—stands witness, therefore, 
of the distinctive principles of the Free 
Church. I have already spoken of the af¬ 
fectionate representation of 1843 as the man¬ 
ifesto on which endowment was invited, and 
these two historical papers are those which 
bear most directly on the question, what 
are the trusts of this foundation? There are 
a number of authoritative documents of the 
General Assembly in following years, and 
having examined them all, I find them all 
to bear out the statements made to the 
public in the affectionate representation. 
The degree of prominence attached to the 
one or to the other of the Church’s doc¬ 
trines, of course, depends on the occasion 
of the pronouncement, and it would be un¬ 
fair to isolate any statement from its mo¬ 
tive and context. I shall mention three ut¬ 
terances as instructive in more ways than 
one, especially as the first of these is found¬ 
ed on by the respondents. In 1851 (the 
matter in hand rendering this appropriate) 
it is spiritual independence that is put in¬ 
to the “parenthesis,” and the Establishment 
principle that is substantively asserted. 

"While this Church has ever held that 
she possesses an independent and exclusive 
jurisdiction or power in all ecclesiastical 
matters,” and so on, “she has at the same 
time always strenuously advocated the doc¬ 
trine taught in Holy Scripture, that nations 
and their rulers are bound to own the truth 
of God, and to advance the Kingdom of His 
Son, the Assembly goes on in a historical 
review of Scottish history to illustrate how 
this had been done, and how it had not been 
done, the first instances approved being the 
statutes establishing iho Church in 1567 and 
1592. 

Now in this paper there occurs a passage 
which has beeu founded on by by the re¬ 
spondents, in which the Assembly says that 

"It is her being free, and not her being 
established that constitutes the real his¬ 
torical and hereditary identity of the Re¬ 
formed National Church of Scotland.” 

Of course it is not the fact of her being 
established that constitutes the identity, or 
the Free Church claim would be impossible; 
but I entirely fail to ©ee what this has to 
say to the principle of establishment. This 
argument of the respondents is merely an¬ 
other instance of the recurring fallacy which 
confuses the fact of a Church being estab¬ 
lished with the holding by a Church of the 
Establishment principle. The “Act 7, 1853,” 
is “anent the principle© of the r -urch.” it 
is short and unequivocal, and it conb-ins an 
authoritative exposition or glos6 of the 
claim, declaration, and protest of 1842, and 
the protest of 1842. It 

“Declares that this Church maintains un¬ 
altered and uncompromised the principles 
©et forth in the claim, declaration, and pro¬ 
test of 1842, and the protest of 1842, relative 
to the lawfulness and obligation of a Scrip- 














THE SCOTTISH FREE CHURCH CASE. 


tural alliance between the Church of Christ 
and the State.” 

It will be remembered that in the protest 
the protestors reserved to themselves, their 
successor.;!— 

“To strive by all lawful means to secure 
the performance of the duty of the State to 
support an establishment of religion in ac¬ 
cordance with God’s work.” 

So now the General Assembly goes to ex¬ 
plain that there is not in 1853 any “present 
call” to take steps in that direction. This, 
Jhe return to a purified Establishment, was 
tne only “union” ever thought of by the old 
Free Church. 

Doctrine of Spiritual Independence. 

The only other Act of Assembly of the 
Free Church to which I need refer is that of 
1873, in which, in full view of the United 
Presbyterians—for the Act relates to the 
mutual eligibility of their ministers—the 
Assembly “declare their adherence to the 
great fundamental principles of this Church 
regarding first the sole and supreme au¬ 
thority of the Lord Jesus Christ. I need not 
quote this in full. It is the doctrine of spir- 
i:ual independence. 

“And secondly, the prerogative of the Lord 
Jesus Christ as head over all things to His 
Church, and supreme over nations and their 
rulers, who are consequently bound collec¬ 
tively and officially, as well as individually 
and personally, to own and honor His au¬ 
thority, to further the interests of His holy 
religion, and to accept the guidance of His 
Word as making known His mind and will.” 

We are now in 1873 entering the zone of 
negotiation, and the language is becoming a 
little general, but the important thing is 
that the doctrine about the State, whatever 
t was, is put abreast of the doctrine about 
spiritual independence, the two being de¬ 
clared "great fundamental principles of this 
Church," and what the second of these doc¬ 
trines was in 1843 is not in doubt. What has 
now been said relates to authoritative dec¬ 
larations of the Free Church herself, and 
now a word must be said of her inherited 
standards. I shall put the argument very 
low, indeed, when I say that the Confession 
of Faith, on the face of it, is consistent with 
the high place given by the Disruption lead¬ 
ers to the Establishment principle. It is 
quite certain that the Confession of Faith is 
inexorably opposed to the theory of re¬ 
ligious equality, which is, as we have seen, 
to this day avowed by the United Presbytery 
who now form part of the respondents’ 
Church. The notion that the state is to 
stand neutral between religions—which is 
what is meant by religious equality—is dia¬ 
metrically opposed to the whole teaching of 
John Knox upon this subject, and on this 
occasion I cannot do better than quote from 
one of the Disruption leaders themselves, 
the historian of “The Ten Years’ Conflict” 
187G edition, pp. 3i» and 41 of vol. i.). 
“Knox,” says Dr. Robert Buchanan, “and 
Us enlightened and able associates were 
lear and decided about these two things— 
rst, that no state can, without grievous sin, 
lend its countenance to the Roman Anti¬ 
christ, or to any false religion whatever; and, 
second, that every state is bound to em¬ 
brace, acknowledge and encourage the true 
religion.” 

In Scotland, as everywhere else, at the pe¬ 
riod of the Reformation, the duty of the 
state to own and uphold the true religion 
was looked upon as a first principle, which 
fid not require and hardly admitted of dis¬ 
cussion. To those who realize the high theo¬ 
cratic views of the sixteenth and seven¬ 
teenth centuries in Scotland it is ea»y to 


understand that the autonomy of God’s 
Church and the duty of the State to support 
it were but two essential parts of the one 
great conception of the Christian nation, and 
this is in truth the clew to the Disruption 
documents. On the specific question about 
the twenty-third chapter of the Confession 
of Faith I own that I read with some sur- 
prise that doubts had been entertained by 
learned Judges as to effect cf the w r ords that 
it is the duty of the civil magistrate to 
“take order that the ordinances of God be 
duly settled, administered and observed.” I 
must still take leave to think that those 
words do describe what we call Establish¬ 
ment, and I observe that in the Campbel¬ 
town case, where these observations were 
made, the question before the Court was 
State endowment, which is a different thing. 
On all the grounds which I have stated I 
come to the conclusion that the doctrine of 
Establishment was one of the distinctive and 
fundamental doctrines of the Free Church. 

I shall now mention one or two points in 
the judgments in the Court of Session; so far 
as relating to that question, which demand 
attention. 

A Very Curious Objection. 

Lord Trayner, whose judgment is most 
clear, has stated a very curious objection to 
the likelihood of the Establishment princi¬ 
ple being a fundamental doctrine of a 
Church. His Lordship finds it 

“Difficult to hold that a mere opinion as 
to what some third person was bound to 
do, which he might neglect or refuse to do, 
and which the Church could not compel him 
to do, could in any way be an essential part 
of the constitution of the Church which held 
that opinion.” 

This difficulty really arises out of the 
time-honored personification of the State as 
the civil magistrate. It would certainly not 
have been admitted by John Knox, even 
when Queen Mary represented the civil mag¬ 
istrate, and in these latter days of popular 
power the civil magistrate sits in every 
pew, and his religious duty may be preached 
from every pulpit. Again, Lord Trayner 
thinks that 

“The history of the Free Church shows 
that, as a Church, apart from the opinions 
of individual members, it did not regard the 
Establishment principle as one of its fund¬ 
amental principles.”. 

I pause to observe that I have founded, in 
no instance, on the opinion of individual 
members, but on the collective and official 
declarations of the Church. Now, his Lord¬ 
ship’s first point is: 

“It was from the commencement, and down 
to the date of its union, a Church con¬ 
ducted and maintained, in point of fact, 
according to the Voluntary principle. If 
in theory it was something else, the theory 
did not square with the fact.” 

This comes to no more than that the Free 
Church had not, in fact, State endowment, 
which is the hypothesis without which no 
question could arise. His Lordship’s next 
point is that the Free Church not only did 
nothing to give effect to the Establishment 
principle, but on the contrary, devoted much 
of its tiiqe and energy to bring about if it 
could the disestablishment of the Church 
of Scotland. Now this agitation took place 
only in the latter, and a s the appellants 
would say, the backsliding days, when union 
with the Voluntaries also came in view. 
The important correction to be made is that 
nothing of this kind took place in times 
which, in any possible view, can be looked 
to as evidencing the principles of the Church 


set up in 1843, and therefore as fixing the 
scope of this foundation. I find in Lord 
Trayner’s judgment an antithesis set up be¬ 
tween matter of faith (and sometimes the 
Latin equivalent is used) and matter of 
polity. This can only be important if what 
is matter of polity as distinguised from mat¬ 
ter of faith cannot be made by a Church 
one of its distinctive and fundamental doc¬ 
trines in the sense of this controversy. I 
have already given my reasons for thinking 
this untenable, and the distinction there¬ 
fore inconclusive. The Lord Justice-Clerk 
attaches very great, and Lord Trayner great 
importance to the decision in the Campbel¬ 
town case, to which I have already alluded. 
Now, that decision was that the principle of 
State endowment was not an essential or 
fundamental doctrine of a particular congre¬ 
gation in Campbeltown. It was not Free 
Church congregation at all, and the question 
arose before 1843. The judge thought that 
as mere adherence to the Confession of 
Faith did not pledge that congregation to 
the doctrine of State endowment, but what 
in my judgment ties the Free Church to the 
doctrine now in question are acts with which 
the Campbeltown congregation had nothing 
to do, the doctrine is State Establishment. 

The Doctrine of “The Early Days.” 

I must add that the grounds upon which 
the Lord Justice-Clerk comes to the con¬ 
clusion that the principle of Establishment 
was in the early days of the Free Church 
treated as “subordinate” do not seem \ ,y 
cogent. In the first place, he quotes as 
proving the doctrine of “the early days” 
two documents which belong to the later 
days, 1871 and 1873, and must be read in 
the light of their dates. Bur, further, to 
say that in 1844 the “principle of Estab¬ 
lishment was repudiated” is to ignore the 
whole theory of the appellants’ case, and the 
argument it gives rise to. Lord Low de¬ 
cided the case on the ground that the Es¬ 
tablishment principle was not so essential 
that the General Assembly could not de¬ 
part from it. He expresses a cautious and 
guarded view as to its power to deal with 
what he deems more essenti:.l doctrines. 
The Lord Justice-Clerk seems to take much 
the same view, but he rates very high the 
“legislative” power of the Church. Lord 
Trayner, however, takes a much bolder po¬ 
sition— 

“That the Establishment principle had 
been explicablv explained in 1843 to be an 
essential principle of the Free Church. I 
think the Church had the power to abandon 
that principle, and to that extent alter the 
original constitution.” 

Lord Trayner’s view tvas argued at your 
Lordship’s bar with great vigor and confi¬ 
dence. Before proceeding to consider this 
argument, I ought to point out that the 
judgment of Lord Young is wholly rested 
upon the ground, stated in very sweeping 
terms, that there is nothing to prevent a 
dissenting Church from abandoning a reli¬ 
gious doctrine, however essential and funda¬ 
mental, and that an ex-facie absolute prop¬ 
erty title cannot be limited by reference 
note expressed to “the essential doctrines 
and fundamental principles in the consti¬ 
tution of the Church.” It is unnecessary to 
say more of this ground of judgment than 
that it is a flat contradiction of the deci¬ 
sion of your Lordships in the ease of Craig- 
dallie. 

Elastic Powers of Altering Constitn- 
t ion. 

The more plausible theory of the respon¬ 
dents is that there are to be fovand inherent 











THE SCOTTISH TREE CHURCH CASE. 


23 


in the Free Church some extremely elast ; c 
powers of altering her constitution. Those 
powers, it is said, were as much a quality 
of the Free Church when it received the 
endowments now in dispute as the doctrine 
of Establishment, and any one giving to the 
Church gave on that footing. This must 
mean, if it has any effect on the present 
controversy, that such alterations may be 
made by a majority of the General Assembly 
with the consent of a majority of Presby¬ 
teries. The extent of the powers so claimed 
is shown by the respondents’ counsel having 
avowed that they held that the Free Church 
could do away with the Confession of Faith 
as one of her standards, and Lord Trayner 
is not prepared to say that the doctrine of 
the divinity of Christ does not stand in the 
same precarious position. I shall state in 
advance the answers to this view and then 
examine the opinions of the Court in a little 
more detail. First, the learned Judges have 
greatly overrated the “legislative” power of 
the Church, misled by what I think an er¬ 
roneous construction of the Barrier Act. 
Second, putting this legislative power as 
high as you choose, it is a power affecting 
the internal affairs of the Church, and has no 
relation at all and for historical reasons can 
not have, to such operations as this Union 
of 19C0. Third, the Lord Justice-Clerk has 
been completely misinformed as to the tenets 
of the three dissenting bodies, whose unions 
with the Free Church in 1853 and 1876 his 
Lordship regards as precedents and this error 
brings the argument from actual practice to 
the ground. The main ground of the re¬ 
spondents’ argument is the Barrier Act of 
107. It is an Act of the General Assem¬ 
bly, and Lord Trayner says that it “con¬ 
fers” on the Assembly a certain legislative 
power. Now, if the Barrier Act be exam¬ 
ined it will be seen that it does not “con¬ 
fer” or purport to “confer” any legislative 
power. What it does, it imposes certain 
checks on sudden alterations or innovations 
in doctrine' worship, discipline, or govern¬ 
ment. The respondents’ argument is that 
this implies that the General Assembly has 
unlimited power of legislation in the mat¬ 
ters named. I do not think this a legiti¬ 
mate deduction. The Act, on the contrary, 
rather hints that some recent Acts had 
been of questionable legality, or at least 
had not commanded “exact obedience.” It 
named doctrine, worship, discipline and 
government, not as being the ambition of the 
Assembly’s power, but as the regions of ap¬ 
prehended attack. When all this is read in 
the light of contemporary history, the mo¬ 
tive of the Barrier Act is obvious as a desire 
to ward off incursions of the Episcopalians. 
And I do not think that at the very most 
it comes to more than furnishing some ev¬ 
idence that the General Assembly either had 
been dealing, or might be induced to deal, 
with those high matters. The respondents’ 
argument incidentally calling attention to 
a prior Act of Assembly about innovations 
is instructive in the same direction, for this 
Act (August 6, 1641) forbids novation in doc¬ 
trine to be brought in pr practiced in the 
Kirk, unless it be first propounded, exam¬ 
ined, and allowed in the General Assembly. 
The inference from this, if the respondents’ 
argument were applied to it, must be that, 
according to use, novations in doctrine had 
formerly been brought in by the inferior 
Courts or officers of the Church, and that 
this was the law. 

Historical Fact. 

But on the question of hL.oi uJ fact there 

is no need to rely on the implications (for 


they are no more) of one Act of Assembly. 
Where is the Act, where are the Acts which 
evidence the actual exercise of those powers? 
The respondents’ appeal to the Act of 1560, 
adopting Knox’s Confession of Faith, entire- 
j ly fails them. It was adopted by the Es- 
| tates, as Mr. Taylor Innes very justly ob¬ 
serves in a passage which appears in the 
first though not in the second edition of his 
admirable work on creeds. 

“Nothing,” he says, “can be clearer than 
that the doctrine—not adopted in any way 
upon the authority of the new-born or Re¬ 
formed Church—all the forms of free and de¬ 
liberate voting of the doctrine as truth as 
the creed of the Estates, not of the Church, 
were gone through.” 

Of the other most extreme instances of in- 
; dependent action which were cited, it may be 
observed that the Book of Discipline was not 
an alteration of an existing creed, ex¬ 
cept to the indirect extent to which an added 
standard usually affects the authority of the 
old, even if (as here) both old and new were 
consentaneous, that the adoption of the cove¬ 
nant was a revolutionary act in a revolu¬ 
tionary time, that the Westminster Confes¬ 
sion of Faith, while it was adopted by the 
Gener. 1 Assembly (with certain qualifica- 
tLns) was the offspring of Parliamentary ac¬ 
tion, initiated before the General Assembly 
i took it up. Of the two modern instances, the 
Chapel Act and the Veto Act, the Chapel Act 
was held by its authors to be so clearly de¬ 
claratory that it was not sent down to Pres¬ 
byteries under the Barrier Act. and the 
whole theory of the Free Church party was 
that neither Act was an alteration of the 
constitution of the Church, - so much so that 
the Assembly hesitated before sending the 
Veto Act to the Presbyteries. The case of 
the respondents, therefore, on the Barrier 
Act does not stand the test of examination, 
and does not support their theory that, in 
giving to the Free Church, the pious found¬ 
ers of the Free Church were knowingly giving 
to a Church one of whose inherent qualities 
was that she could alter her essential prin¬ 
ciples. Neither history nor law make this 
out. The House is in a much better condi¬ 
tion to deal with this question after the re¬ 
hearing than before it, because of the com¬ 
plete presentation in print of the historical 
documents relied on. In my own case a very 
careful study of those papers has largely in¬ 
creased my confidence in rejecting the re¬ 
spondents’ argument. I find nothing from be¬ 
ginning to end which supports the theory 
that the Church of Scotland exercised or 
claimed the right to alter doctrines which 
she had asserted to be Scriptural. (I am not 
now, of course, speaking of the doctrine of 
Establishment, which is in dispute, but of 
doctrine generally, and more especially of the 
Confession of Faith.) 

The Second Book o£ Discipline. 

Amid the mass of documents the Second 
Book of Discipline has been confidently re¬ 
lied on by the respondents. Conceding, as 
I think is their right, that this book was an 
adopted standard of the Free Church, I fail 
to discover in it any help in their present 
trouble. That it stood them in good stead 
about non-intrusion is certain, but this not 
hujus loci. What strikes any one who reads 
the book through is that it is not, and does 
not purport to be, a picture of an existing 
institution, and even as an ideal it is vague. 
As matter of fact, it was promulgated before 
the system of Presbyterian government had 
been systematized and set up in Scotland. It 
is not surprising, therefore, that beyond 
negativing the theory of Episcopacy, it con¬ 
tains no recognizable description of the 


Scotch Presbyterian Kirk as an ecclesiastical 
organism, and more particularly it never 
confronts the question with which your 
Lordships have to deal, viz., what control has 
that ecclesiastical organism even when 
taken as a whole—and still less when exam¬ 
ined in its parts—over her doctrine? The 
truth is that here, as throughout the case, 
the respondents mistake the emphatic de¬ 
nial of the right of the State to meddle with 
those matters, for an assertion of the right 
of the Church to absolute power over her 
own declared doctrine. The passage mainly 
relied on—chapter 7, head 8—proves too 
much, for it applies to all the four kinds 
of Assemblies, but, on the face of it, it deal3 
with ordinances depending for their utility 
on circumstances of time and place, and this 
cannot possibly include doctrine. The only 
hint or reference to the subject of doctrine 
in relation to a judicatory (in seven, 25) 
would rather imply that ecumenical councils 
are the bodies to declare doctrine; but this 
is not clear, and it is enough to say that the 
subject now before us is not dealt with in re¬ 
lation to the Scotch Kirk. 

Consuetudinary I.avr« • 

One admitted fact, indeed, in what may be 
called the consuetudinary law, or common 
law of the Established Church, and the Free 
Church directly negatives this theory of the 
unrestricted command of the Church over 
her creeds. The General Assembly itself is 
made up of commissioners, and each commis¬ 
sion is in writing. By immemorial custom 
this commission bears that the commission¬ 
ers are to repair to the Assembly. 

“And there to consult, vote and determine 
in all matters that come before them, to the 
glory of God and the good of the Church 
according to the Word of God, the Confession 
of Faith, and agreeably to the constitution 
of the Church, as they shall be answer- 
able.” 

Now, I must own my inability to see how 
it would fall within this mandate to do away 
with, or help to do away with, the Con¬ 
fession of Faith as standards of the Free 
Church, and I mention this as testing ilie 
argument for the unlimited power of the 
General Assembly under the Barrier Act. It 
has, indeed, been attempted to use one re¬ 
mark of Lord Cranworth, in Forbes v. Eden, 
as implying that in all Churches there is a 
legislative power. The case was that of a 
specific change on one of the canons of the 
Scotch Episcopal Church, made by Synod of 
that body, and I do not think it was laid 
down as law that powers of legislation are 
necessarily inherent in every dissenting 
body, this being in each case really a ques¬ 
tion of fact. But Lord Cranworth’s remarks 
make perfectly clear that what he is speak¬ 
ing of is entirely internal regulation, and 
it is here that the whole argument of the 
respondents about legislation falls short of 
the required conclusion. To revert to the 
Presbyterian Church of Scotland it may be 
a merit or a demerit, but the original and 
historical theory of the Reformed Church 
of Scotland was that within, and not outside 
her pale, was truth to be found. Without 
were Prelatists and Papists. When later on 
some Presbyterians had held aloof from the 
revolution settlement, and still later others 
had made the several secessions of the eigh¬ 
teenth century, their attitude, and the at¬ 
titude of their parent Church never raised 
the question of comprehension, the seceders 
in more than one instance having .been de¬ 
posed. The single in-stance, which we were 
referred to in pre-Disruption days of a dis¬ 
senting body coming back into the Church, 











24 


THE SCOTTISH FREE CHURCH CASE. 


■was tho return of the Associate Synod in ! 
1839, and it is enough to say that, while j 
the Act of Assembly is called “Act anent i 
Reunion with Seecders,” each office bearer of 
the Associate Synod was required, before 
takiug his seat as a member of Presbytery, ; 
to subscribe the Westminster Confession of 
Faith and the formula of the Church of Scot¬ 
land, and this being done they were "re¬ 
ceived,’' and were declared to enjoy all the 
rights and privileges of ordained ministers 
and elders Of the Church of Scotland. In 
passing it may be noticed that one of the 
recitals in the Act is- 

“Whereas the members of the Associate 
Synod do heartily concur with us in holding 
the great principle of an ecclesiastical es¬ 
tablishment and tho duty of acknowledging 
God hi our national as well as our individ¬ 
ual capacity." 

The only reservation made by the return¬ 
ing Dissenters was 

■■Reserving only to themselves the right 
which the members of the Established Church 
enjoy of endeavoring to correct, in a law¬ 
ful manner, what may appear to them to be 
faulty in its construction and government.” 

OriKina‘1 l nitetl SiTnlrr*. 

If it had been desired to furnish an illus¬ 
tration of a contrast to the union now in 
question, it. would have been difficult to 
picture one more complete than is thus sup¬ 
plied by history. Tho second case of “union” 
is that of the Original United Seceders, an¬ 
other of the bodies who held by the Coven¬ 
anting traditions. They in 1852 had come to 
be satisfied that 

"We may with honor and consistency drop 
our position of secession and maintain our 
principle in communion with the Church of 
Scotland. Accordingly they were received 
and admitted by the Free Church as pastors, 
congregations, and kirk sessions of the Free 
Church of Scotland.” 

The other case of union took place in 1876, 
also in the days of the Free Church. It is 
founded upon by the Lord Justice-Clerk in 
his judgment under misapprehension, which, 
unfortunately, enters pretty deeply into his 
Lordship’s judgment. The Lord Justice- 
Clerk says of the Reformed Presbyterian 
Church that it “certainly did not hold the 
Establishment principle,” and for this sur¬ 
prising statement he gives as his reason 
that since 1689 they declined to become mem¬ 
bers of the Church of Scotland as estab¬ 
lished, abode by their objections to the Rev¬ 
olution settlement, and did not 

“Commit themselves to an approval of an 
alliance of the Church with the British State 
as at present constituted, having in view 


especially the unscriptural character of its 
ecclesiastical relations.” 

Now, so far from the Reformed Presby¬ 
terians not holding the Establishment prin¬ 
ciple, they were the ecclesiastical heirs of 
theCovenanters, who held it passionately, and 
they represented the extreme right in Pres¬ 
byterian orthodoxy; but they washed their 
hands of the Revolution settlement because 
the same State which established the Presby¬ 
terian Church in Scotland ignored the “sec¬ 
ond Reformation," and established in Eng¬ 
land the Prelatical Church, against w'hich 
we had never ceased to be denounced by the 
Church of the second Reformation. Accord¬ 
ingly, the attitude of the Reformed Presby¬ 
terians on the Establishment question was 
exactly analogous to that of the Free Church. 
Holding the Establishment principle, they 
held aloof from the existing Establishment, 
because, as they held, constituted on w'rong 
terms. The statement of the Lord Justice- 
Clerk, therefore, can only be supported if 
his Lordship means that men do not hold the 
Establishment principle if they decline to 
join the Establishment as constituted at the 
time, and if this be sound it furnishes (as 
already pointed out) a very simple end of the 
present case. The net result, then, of the 
history of these unions is this, and nothing 
more, that where the General Assembly have 
been satisfied about Presbyterian bodies, 
that they held the same standards as them¬ 
selves, and were sound on the Establishment 
principle, those bodies have been admitted 
w'ith full honors. 1 have hitherto discussed 
the case as relating to the general propriety 
of the Free Church, and I have come to the 
conclusion that the appellants are entitled 
to prevail. The other action only differs 
because of the Model Trust Deed. Of it I 
have only to say that it is, and was, treated 
in its inception as a conveyancer’s instru¬ 
ment, that its clauses about union seem to 
me to apply necessarily only to such unions 
as were competent to the Free Church, and 
that they are entirely satisfied, and were 
probably suggested by such cases as had 
occurred. It is not in such a deed that you 
can look for constitutional changes or for 
new r powers not hitherto possessed. • 

The Clinreli Property. 

Regarding the whole of the property now' 
in dispute, I cannot see bow in law or in 
fairness a majority of the men who ac¬ 
quired it on the representations made for 
the effective representation could have been 
allowed, say, in 1850, to carry off the proper¬ 
ty to the Voluntaries, and come forward 
arm in arm with the Voluntaries and claim 
it for the fused body; and, after all the ar¬ 


gument we have heard, I have discovered no 
reason which makes that fair and lawful 
in 1900 which would not have been so fifty 
years earlier. A serious and weighty argu¬ 
ment was addressed to your Lordships on 
both sides of the bar relating to the Con¬ 
fession of Faith. That argument treated of 
two separate matters, which in my judg¬ 
ment must be separately considered. The 
first is whether the respondents have not 
deposed the Confession of Faith from its 
place of authority as a standard of the 
Church, and whether tins of itself does not 
take them outside tho trusts under which 
the property is held. The second, and quite 
separate question is whether on one specific 
doctrine—viz., predestination—the new for¬ 
mulary is not contradictory of the Confes¬ 
sion of Faith. On the former of these ques¬ 
tions my judgment is iu favor of the appel¬ 
lants. First of all, 1 put aside any confu¬ 
sion which may arise from the substitution 
of the Westminster Confession for John 
Knox’s Confession. It is with the 'West¬ 
minster Confession that we have to do, and 
it seems to me that if anything .8 
certain it is that the Free Church was 
pledged to the doctrine of the NVcst- 
minster Confession as her doctrine and the 
doctrine of her office-bearers. Through all 
her history, and at every crisis or her his¬ 
tory assuming her identity with the his¬ 
torical Church of Scotland, she proclaimed 
this on the housetops, and in the most solemn 
and deliberate of her testimonies. Freed 
from State interference in 1843, she proceed¬ 
ed to fasten on herself the old obligations 
of her rights in judicial cases to construe 
the Confession of Faith. There is no need 
to speak, but that the Confession of Faith i» 
“the truths of God” was solemnly attested :• 
by the personal belief of all w r ho signed it. 
That this was found to be a hard yoke is 
credible, and has been asserted. Of the 
means at the command of the Free Church 
to alleviate this pressure I do not know. Bui 
what she has now done is to. substitute a 
belief in “the doctrine of the Church as ex¬ 
pressed in the Confession of Faith” and the 
general words in the first of the declarations 
adopted by the United Assembly on 31st Oc¬ 
tober, 1900, make it plain that the doctrine 
of the Church, as part of her constitution, t3 
intended to be mutable. This places the 
Confession of Faith in a precarious instead 
of a stable position, and, in my opinion, 
this is an abandonment of an essential char¬ 
acteristic of the Free Church. Such being 
my opinion, on the more general question 
as to the Confession of Faith, I deem myself 
absolved from the necessity of entering on 
that one of its articles which has been separ¬ 
ately discussed—viz., predestination. I am 
of opinion that in both cases the judgments 
ought to be reversed. 











* 




THE SCOTTISH FREE CHURCH CASE. 


Lord Nathaniel Lindley of the Minority, 


Lord Lindley said: My Lords, in the year 
1000 the Free Church of Scotland (twice the 
pursuers and appellants claim to represent) 
and the United Presbyterian Church united 
and formed the United Free Church of Scot¬ 
land. Property previously held by trustees 
In trust for the Free Church was trans¬ 
ferred to trustees in trust for »the united 
body—i. e., the United Free Church—and 
the question raised by the first appeal is 
whether this transfer of property was or 
was not a breach of trust and invalid, al¬ 
though sanctioned by the General Assem¬ 
bly of the Free Church and by the great 
majority of the members thereof. The 
Court of Sessions decided this question 
against the pursuers, and they have appealed 
to your Lordships’ House against this de¬ 
cision. The second appeal-relates to prop¬ 
erty conveyed lo trustees for particular 
congregations of the Free Church, the 
trusts of which are fully set out in the 
Model Trust Deed of 1844, which is one of 
the most important documents in the case. 
The question raised by the second appeal 
is whether the trusts declared by that deed 
are confined to members of the Free Church 
represented by the appellants or whether the 
trusts are wide enough to include all the 
members of the United Free Church formed 
in 1900. The Court of Sessions decided this 
question also against the appellants. Both 
appeals are really based upon the ground 
that the union of the two churches could 
not be legally effected consistently with the 
constitution and standard of the Free 
Church, and that consequently the transfer 
of the property of that Church to the United 
Free Church was a breach of trust and in¬ 
valid, and that as regards the congregation¬ 
al property the benefits of the trusts of the 
Model Trust Deed can only be enjoyed by 
persons professing the doctrines which the 
appellants contend w-ere unalterable doc¬ 
trines of the Free Church. My Lords, the 
controversy as to the Church property in¬ 
volves the necessity of ascertaining, first, 
the trusts on which that property was held 
before the transfer; and. secondly, the trusts 
on which it was to be held • afterward. 

The Crucial OneHtioa. 

My Lords, the whole controversy turns on 
the powers of the General Assemblies of the 
Free Church. If they have no power to re¬ 
lax the fetter which the appellants .ontend 
bound the Free Church hard and fast from 
its birth, then these appellants ought (o suc¬ 
ceed, but if, as the Courts in Scotland have 
held, the General Assemblies of the Free 
Church have power to do what they have 
done, then these appeals must fail. I pro¬ 
pose therefore to confine my observations 
entirely to this one crucial question. The 
circumstances which led to the secession of 
the founders of the Free Church from the 
Established Church, and the views of the 
seceders are fully set out in the Claim, Dec¬ 
laration, and Protest of the 30th May, 1842, 
and in the Protest of the 18th May, 1843. 
These documents and the Model Trust Deed 
framed on the basis of these documents in 
1844 show that while the seceders renounced 
all the benefits derived by the Established 
Church from its connection with the State, 
and shook off so far as they could, all inter¬ 
ference and control by the state, yet they 


clung tenaciously to the Holy Scriptures, the 
Westminster Confession, the two Catechisms 
and the Second Book of Discipline, and re¬ 
garded them as determining and regulating 
their doctrine, worship and government. The 
government of the Church is declared to be 
in the hands of the Church officers, which 
means, in the last resort, the General As¬ 
sembly. The powers of this body, as orig¬ 
inally established, are to be found in the 
Westminster Confession and in the Second 
Book of Discipline; but the Free Church 
greatly enlarged these powers in 1842 and 
1851, as will be seen presently. The Claim, 
Declaration and Protest above referred to 
treat the immunity of the General Asoemblv 
from all State control as a fundamental prin¬ 
ciple of the Church of Scotland, and the 
Free Church was formed in order to secure 
this immunity more completely than the 
Civil Courts had declared to be possible 
for members of the existing Established 
Church. Freedom from State control in 
spiritual matters, as understood by Free 
Churchmen, is the raison d’etre of the 
Free Church. The address to Her late Maj¬ 
esty (30th May, 1842), the Act of Separation, 
and Deed of Demission by Minister (23d May, 
1843), and the Deed of Demission by Elders 
(30th May, 1843) which followed it, all put 
this ars the great object of the whole move¬ 
ment. At the same time, the claims of the 
seceders are declared to be based on the 
constitution and standards of the Church of 
Scotland has heretofore understood, and in 
particular they considered it the duty of the 
State to promote religion as inculcated in 
the Westminster Confession and the other 
•standards of the Established Church. By the 
expression “heretofore understood" I think 
is meant understood by the Church of 
Scotland, unfettered by legislation and by 
j legal decisions based upon it. I must now 
invite your Lordships’ attention to the pow¬ 
ers of a General Assembly of the Church of 
Scotland as declared in the Second Book of 
Discipline (1578), the Westminster Confession 
(1643), ratified by statute 7th June, 1690, and 
the Barrier Act (1697). The Second Book of 
Discipline is referred to in the Claim, Dec¬ 
laration and Protest of 1S42 as ope of the 
Church’s authorized standards, and in the 
Act and Declaration of 1851 (which will be 
hereafter mentioned) as one of her earliest 
standards. It is a w'ofk of great authority. 
Speaking of Assemblies, it is laid down 
(Chapters VII, section 8):' 

“They have power also to abrogate and 
abolish all statutes and ordinances concern¬ 
ing ecclesiastical matters that are found 
noisome and unprofitable, and agree not with 
the time or are abused by the people.” 

This is a very large legislative power ex¬ 
ercisable by Gerteral Assemblies r*f the 
whole Church, but not. I should think, by 
email Assemblies, whose functions are more 
circumscribed. ___ 


that Confession. (See Chapter 31, Article 4.) 
But although infallibility is denied them, 
great power is conferred upon them, for 
Synods and Councils are to determine con¬ 
troversies of faith and to make rules for 
public worship and the government of the 
Church. (See Chapter 31, Article 3.) Their 
power is limited to ecclesiastical as distin¬ 
guished from civil affairs. (See Article 5.) 
It is also declared in the Confession itself 
that the Holy Scriptures are the foundation 
of the doctrine contained in the Confession 
and are to be the foundation of the doc¬ 
trines of the Church which adopts it. (See 
Chapter 1.) In all controversies of religion 
the Church is finally to appeal unto the 
Holy Scriptures. (Chapter 1, Article 8.) 
Chapters l and 31. when read together, ap¬ 
pear to me to confer upon Synods or Coun¬ 
cils the power of interpreting the Holy 
Scriptures and the various articles of the 
Confession when controversies arise as to 
their meaning, and as infallibility is dis¬ 
claimed it follows that an interpretation put 
by a Synod or Council on Scripture or the 
Confession is not binding for all time, but 
may be modified or even rejected, and be 
replaced by another interpretation adopted 
by a lat^r Synod or Council, and declared 
by it to be in its judgment the true mean¬ 
ing of the Scriptures or Confession. I take 
it to be clear that there is a condition im¬ 
plied in this, as well as in other instruments, 
which create powers—viz., that the powers 
shall be used bona fide for the purposes for 
which they are conferred. If, therefore, a 
Synod or Council, under color of exercis¬ 
ing ihelr authority, were to destroy the 
Church which they were appointed to pre¬ 
serve, or were to abrogate the doctrines 
which they were - appointed to maintain, 
their acts would be ultra vires and invalid 
in point of law, and it would be the duty of 
every Court in the United Kingdom so to 
hold if the question ever involved a contro¬ 
versy as to civil rights, and so arose for 
judicial decision. For all persons who are 
members of the Church of Scotland its Gen¬ 
eral Assembly is the highest Council of the 
Church, and it. is difficult to limit the 
powers conferred upon it by the foregoing 
documents, except by an appeal to the im¬ 
plied condition to which I f referred. 


i-- Difficult Definition. 




( Ininis of tiie Confession. 

The Westminster Confession is, next to 
the Hr.ly Scriptures, the most authoritative 
document of all for members of the Scotch 
Church.. It is plain from the language of 
this Confession that its framers laid no 
claim to infallibility for themselves, and 
disclaimed infallibility for the Synods and 
Councils of the Church) that should adopt 


I cannot agree with those who contend that 
the powers of the General Assembly as de¬ 
clared in these documents'are unlimited; but 
I am not able myself to define the limits of 
its authority mo -- e accurately than above 
stated. It is probably impossible to draw 
a sharp line clearly dividing all Acts of a 
General Assembly which are within its power 
from all Acts which are beyond it; but it 
does not follow that it is impossible, or in¬ 
deed difficult to decide in the great majority 
of cases whether a particular act is within 
its power or beyond it. Great as the powers 
are, they are limited by what can be found 
in the Scriptures. The Church must be a 
Christian Church and a reformed Protestant 
Church. So far all is plain. I should my¬ 
self think that it must be a Presbyterian 
Church, but this question is disputable and 
happily does not arise. That Very extensive 
but not accurately defined power, both as 
to doctrine and government is vested in a 
General Assembly of the Scottish Church is 

















THE SCOTTISH FREE CHURCH CASE. 


26 


apparent from the Act of Assembly of 1697. 
commonly called the Barrier Act. Extensive 
hut undefined power is there unmistakably 
assumed and recognized. No limit is set to 
it, but very important machinery is provided 
f or its future exercise to prevent hasty de¬ 
crees in that respect. The Act is a restrict¬ 
ive Act, for unless the prescribed machinery 
's adopted an Act of Assembly cannot be¬ 
come a “binding rule and constitution" of 
the Church, but the restriction only affects 
procedure. The wide powers of the Gen¬ 
eral Assembly are not curtailed. This Act 
is, in my opinion, clearly applicable to the 
General Assemblies of the Free Church. It 
was included in what was adopted when that 
Church was created. My Lords, if the case 
row before this House had to be decided 
on the documents to which T have already 
alluded, and without reference to any 
Acts of Parliament or other Ads of 
Assembly, I should hesitate long before I 
came to the conclusion that what the ap¬ 
pellants mainly complain of was beyond the 
power of the General Assembly of the Free 
Church. Any interpretation of Scripture or 
of the subordinate standards bona-fide adop¬ 
ted by a General Assembly and held by them 
better to express the doctrine intended to be 
expressed by the language used in the Con¬ 
fession itself, cannot, in my opinion, be 
treated as beyond their power, but is well 
within it. But there are other documents 
which have to be considered, and especially 
the Model Trust Deed, prepared in 1814, 
under the instructions of the General As¬ 
sembly of the Free Church and formally 
approved and adopted by it in 1851. It is 
therein recited that it was at all times an 
essential doctrine of the Church of Scotland 
that it should have a government, in the 
hands of church officers, distinct from the 
civil magistrate or supreme power of the 
State, and that the government comprehends 
“the whole power of the Keys," which ex¬ 
pression, I understand, includes those wide 
powers to which I have already referred in 
all matters touching the doctrine, worship, 
discipline and government of the Church. 
Then It. recites the secccion from the Estab¬ 
lished Church and the formation of “The 
General Assembly of the Free Church, with 
all the powers and privileges and the same 
internal government, jurisdiction, and dis¬ 
cipline, according to the true and original 
principles of the Church of Scotland before 
the separation." 

The model deed, a sort of conveyance of 
property to trustees at great length, but 
which may be shortly summarized as trus¬ 
tees for a place for religious worship by 
members of the Free Church. These Trusts 
clearly contemplate the union of the Free 
Church with “other bodies of Christians as 
the said Free Church of Scotland may at any 
time hereafter associate with themselves.” 
and provision is made for worship by such 
united bodies. The fourth Trust is very 
important. It is to the effect that the 
Trustees shall at all times be subject, in 
the management and control of the Trust 
property, and in all matters and things con¬ 
nected therewith, to the regulation and di¬ 
rection of the General Assembly for the 
time being of the said body or united body 
of Christians. Provision is made for the 
event of a seccession from the Church—see 
the ninth Trust. These Trusts are con¬ 
fined to the congregational property, which 
is the subject of the second appeal, but no 
one suggests that, as regards the constitu¬ 
tion of the Free Church and the powers of 
the General Assembly, there is any difference 
between one set of members; and, in my 


opinion, the Model Trust Deed emphasizes 
and makes plain much that is obscure when 
the subordinate standards alone are looked 
at, especially when the legislation affecting 
them is borne in mind. In the year 1844 1 
trustees were appointed to bold any prop¬ 
erty which might be bequeathed or con¬ 
veyed to them for the Free Church and also 
such places of worship as might be erected 
on sites granted to trustees nominated by 
the General Assembly, also such other 
places of worship as persons might wish to 
convey to them on the terras of the Model 
Trust Deed. A fresh appointment was 
made in 1871. I pass on to consider what 
was done as regards the union of the Free 
Church with the United Presbyterian 
Church. Union with other Presbyterian 
Churches was apparently desired some fifty 
years ago, but in order to effect union with 
the United Presbyterians several arrange¬ 
ments of importance had to be made, par¬ 
ticularly with reference to the mutual 
eligibility of the ministers and other officers 
of the two bodies to Church offices and to 
the adjustment of the different views held 
by the two churches respecting predestina¬ 
tion and respecting their relation to the 
state and their duties to the state as re¬ 
gards religion. It took many years to settle 
these prelminary matters. 

Legality of Declaratory Act. 

In 1892 the General Assembly of the Free 
Church passed “The Declaratory Act anent 
the Confession of Faith,” and although a 
small minority of members protested 
against it, I am quite unable to discover 
any valid ground for holding this Act to be 
one which a General Assembly of.the Free 
Church had no power to pass. It no doubt 
relaxed the excessive stringency of certain 
articles of the Westminster Confession if 
construed literally, but jt imposed no new 
fetters, and in relaxing the old ones, and so 
rendering them more acceptable to many 
earnest Presbyterians desirous of remain¬ 
ing in the Church or becoming members of 
it, the General Assembly were honestly at¬ 
tempting to preserve the Free Church and 
its fundamental doctrines, and in my opin¬ 
ion there is no pretence for saying That 
they were false to their trust, and were en¬ 
deavoring to destroy any doctrine which it 
was their duty to preserve. 

My Lords, I can understand that an ordi¬ 
nary member of the Free Church, brought 
up from childhood to regard the Confession 
as an inspired document to be construed 
literally and in the same sense for all time, 
may take some of the doctrines set forth 
in this Act as unorthodox, but. that is not 
the question on which this appeal turns. The 
question is whether it is competent for the 
governing body of that Church in General 
Assembly, complying with the conditions of 
the Barrier Act. to declare that the Con¬ 
fession, properly understood, does not re¬ 
quire absolute uniformity of belief on the 
matters dealt with by the Declaratory Act. 
This is the great question at issue between 
the parties to this appeal, and I have come 
to the clear opinion that on this question 
the apelliants arc wrong. I come to this 
conclusion after a careful examination of 
the powers of the General Assembly as con¬ 
tained in the documents before referred to. 
These powers are, in my opinion, as funda¬ 
mental in the constitution of the Free 
Church of Scotland and as essential to it 3 
preservation as any of the doctrines in the 
Confession or other subordinate standards. 
The appellants made a great point of the 
alteration made by this Declaratory Act in 
the fundamental doctrine of the Free 


Church respecting the principle of Estab¬ 
lishment. by which I understand is mea^t 
the duty of the State to promote religion 
and especially the Presbyterian religion, as 
set forth in the Westminster Confession 
and sanctioned by Parliament, as already 
mentioned. Chapter 23, Article 3, of 
the Confession, declares what, in the 
view of the Church of Scotland, is ih® 
duty of the State. Its language is very gen¬ 
eral and leaves the State to determine in 
what manner it will perform such diBv 
Some at all events of the founders of 
Free Church attached great importance 
this principle of Establishment, which ■”** 
not held by all Scotch Presbyterian Church¬ 
es. But it does not follow that ihis principle 
was to be tenaciously adhered to for »n 
time, and that no future General Assem¬ 
bly should have power to modify or relax 
it if. owing to changes of opinion or other 
circumstances, the General Assembly of 
Free Church deliberately came to the conclu¬ 
sion that the preservation and healthy 
growth of the Free Church required the prin¬ 
ciple to be reconsidered. I cannot come to the 
conclusion that, the view taken in 1843 of 
the duty of the State was a fundamental 
doctrine admitting of no explanation or 
modification. Dr. Chalmers’ address, adopted 
by the Free Church, shows that he and i*s 
then members would have strenuously op¬ 
posed the change made, but it does not follow 
that he or they would have denied the pow¬ 
er of a future General Assembly to make 
such change after due deliberation. A® T 
understand the matter, the Free Church <*>>• 
and does fulfill all her spiritual function* 
without any State aid. and the attempt to 
obtain aid from the State, whilst repudiat¬ 
ing all St&te control, has proved a failure. 
This doctrine as to the duty of the State, 
whether best described as a political or re¬ 
ligious doctrine, is a doctrine which the Gen¬ 
eral Assembly could, in my opinion, re¬ 
peal or modify as might he expedient. Tn 
1900 the Act uniting the two Churches was 
passed by the Free Church of Scotland af 
ter complying with all the conditions of the 
Barrier Act. The Act was dated the 31st 
October, 1900, and the two Churches were 
then formed into one under the name of the 
United Free Church of Scotland, and Us su¬ 
preme governing body was designated the 
General Assembly of the United Free Church 
of Scotland. Having regard to the consti¬ 
tution of the Free Church. I cannot agree 
that this union could only be legally valid 
if assented to by all the members of the 
Free Church. 

Tlie Property Question. 

e- • ' O •'«,/ Jl ‘ • .»*>*.;■!*-. . •.. x 

As part of this transaction, property held 
for the. Free Church by its trustees was or¬ 
dered to be conveyed to a new body of trus¬ 
tees for the United Free Church, and this 
was done. But a dissentient minority pro¬ 
tested. This transfer is complained of by 
the pursuers, and is sought to be set aside. 
But having regard to the trusts on which 
the property of the Free Church was held, 
and to the powers of its General Assembly, 
the pursuers have, in my opinion, complete¬ 
ly failed to prove any breach of trust or mis¬ 
application of the property of the Church, 
The United Free Church is the Free Church, 
lawfully enlarged; the individuals entitled to 
the use and enjoyment of the Church prop¬ 
erty are more numerous than before. The 
pursuers in the first appeal have not been 
unlawfully excluded from such use and en¬ 
joyment. There is no evidence that any per¬ 
son has been deprived of the use and en- 












THE SCOTTISH FREE CHURCH CASE. 


27 


joyment of any property held in trust for the 
Free Church, or the United Free Church, or 
any congregation of either, extept a few 
ministers represented by the appellants in 
the second appeal, who repudiate the au¬ 
thority of the General Assembly of the Free 
Church to make the changes complained of. 
and who, by their own conduct, have de¬ 
prived themselves of their right to the ben¬ 
efit of the trusts on which such property is 
held. Both appeals are based on the erro¬ 
neous view that the Free Church had no 
freedom, but that it was bound hard and 
fast to certain doctrines expressed in lun- 
guage admitting for all time of only one 
meaning. I am quite unable so to regard it. 
The struggle for liberty was not so abortive 
as that. In the course of the argument the 
many statutes and decisions were referred 
to. These which related to conflicts with the 
Established Church of Scotland are not 
so important for the present pur¬ 
pose as those which relate to disputes be¬ 
tween members of non-Established Churches. 
The decisions relating to the Established 
Church (viz., the Auchterarder case and 
other Scotch casts referred to in argument) 
would be all-important if your Lordships 
had to consider the validity of acts done by 
the General Assembly of the Established 
Church of Scotland, for that Church is gov¬ 
erned not only by the Westminster Confes¬ 
sion and Acts of Assembly, but also by stat¬ 
utory enactments which make reform in her 
doctrines, worship, discipline and govern¬ 
ment difficult, if not impossible, without leg¬ 
islation. But the Free Church is emanci¬ 
pated from these fetters. As formed in 
1843, the Free Church was purely a Volun¬ 
tary religious association, both Christian 
«nd Protestant, and believed by its founders 
to he Divinely instituted, professing doc¬ 


trines based on the Scriptures and the old 
subordinate standards, governing itself by 
certain rules and providing a representative 
Assembly of its own for explaining its doc¬ 
trines and for preserving the association by 
making such changes in its worship, disci¬ 
pline and government as might be found ex¬ 
pedient; after consulting the whole body as 
required by the Barrier Act. A Trust for the 
Free Church is in my opinion, a Trust for 
such persons as stall hold the doctrines and 
submit in ecclesiastical matters to the gov¬ 
ernment and discipline adopted by the found- | 
ers of the Free Church, with such modifica¬ 
tions as may be made from time to time by 
the General Assembly of that Church, pro¬ 
vided the conditions required by the Barrier 
Act are observed and provided the Church 
is preserved as a reformed Church with 
Presbyterian government. 

In CotU'lnMinn. 

There is no statutory or other law which 
makes such an association illegal, or which 
compels it to accept the Westminster Con¬ 
fession whether with or without modifica¬ 
tion. The founders of the Free Church did 
accept it, but only subject to the powers 
which they insisted were invested in the 
General Assembly of that Church. So long, 
therefore, as the General Assembly does not 
exceed those powers, or act contrary to some 
statutory or other law of Scotland, or com¬ 
mit any breach of trust, as above explained, 
it is not the function of any civil Court to 
interfere with it. This I regard as settled 
by the decision of your Lordships’ House in 
Craigdallie vs. Aikman (Dow, 1 and 2), Bligh 
(529), Forbes and Eden (L. R. 1 Sc., and div. 
app. 568), and is in entire accordance with the 
general law of trusts applicable to such as¬ 
sociations as the Free Church. The distinc¬ 
tion between an erroneous decision by a body 


having jurisdiction to deal with a particular 
subject matter and a decision by a body 
having no jurisdiction over (ho matter de¬ 
cided is familiar to all lawyers, and must be 
steadily borne in mind in tills ease. In pas¬ 
sing the Declaratory Act of 1892 and the 
Act of Union of 1900, I can discover nothing 
ultra vires or contrary to any law; still less 
can I discover anything ultra vires or con¬ 
trary to any law in the interpretation put by 
the General Assembly of the Free Church on 
some of the articles in the Westminster Con¬ 
fession or in the alterations made in the 
declarations and forms to be made and signed 
by the ministers ahd officers of the Church. 
It foliows ihat. in my opinion, the transfer 
of property which is complained of (and 
which was simply consequential on the Acts 
of Assembly of 1892 and 1900) was neither 
ultra vires nor contrary to any law, and can¬ 
not therefore be successfully impeached. 
The foregoing observations apply to both ap¬ 
peals, but the second appeal appears to me 
to present less difficulty than the first. I 
! regret that any ministers should have been 
excluded from their offices; but the Trusts 
declared by the model Trust Deed are clear 
and explicit, and their validity cannot be 
questioned by those who have no title to the 
property to which it applies, except under 
the provisions of that deed. There has been 
no breach cf the Trusts declared by the 
model Trust Deed. My Lords, I might have 
contented myself with paying that I concur¬ 
red in the decision of the Court of Session; 
but the question between the parties is of 
such great importance, and its solution re¬ 
quires a careful study of so many documents, 
statutes and decisions, that I considered I 
should not be adequately discharging my duty 
to this House if I did not set forth as clearly 
as I could the reasons which have induced 
me to give my voice for the dismissal of both 
appeals, with costs. 


tJiC 




Lord Richard Everard Alverstone on the 
Trust Phase of the Case. 


Lord Alverstone said: My Lords, inas¬ 
much as 1 am differing in a Scotch appeal 
from the judgment of the Lord Ordinary, af¬ 
firmed tinaniinou-sly by the Second Division 
of the Court of Session. I think it only right 
that' I should state my reasons for the judg¬ 
ment which I am about to give. The ques¬ 
tion raised by these appeals is whether 
funds invested in the names of trustees, and 
real property held on trust for the behoof 
of the Free Church of Scotland, have been 
dealt with in a way which constitutes a 
breach of trust. Both classes of property 
are now beiDg applied, or it is proposed to 
apply them, for the purposes of the United 
Free Church, being a body of Christians 
formed by a union, or attempted union, of 
a great majority of the ministers and elders 
of the Free Church of Scotland with the 
ministers and elders of the United Presby¬ 
terian Church of Scotland, and the point to 
be decided ia whether, having regard to the 
purposes for which the money and property 
were originally subscribed, given, be¬ 
queathed or conveyed, such application con¬ 
stitutes a breach of trust. The union, or 


attempted union, was assented to and ap¬ 
proved of by a very large majority of the 
ministers and elders and congregations of 
the Free Chvirch—the actual numbers are 
not material, but as I understand all except 
some thirty of the ministers approved of the 
proposed union. But the dissenting minori¬ 
ty represent a very considerable body of ad¬ 
herents to congregations of the Free Church 
who do not approve of, and some of whom 
have protested against the proposed union. 
Law un to Fund*. 

The law applicable to funds which have 
been given for the purpose of a voluntary 
association, such as the Free Church, is well 
settled, and it is not necessary for me to do 
more than refer to the decision of your 
Lordships in Craigdallie vs. Aikman to show 
that such funds, in the absence of express 
provision, must be applied for the benefit of 
those who adhere to the original principles 
of the founders. If the term’ of the founda¬ 
tion of the trust provide for the case of 
schism, the Courts will give effect to them, 
but if there be no such provision the 
cestuis que trust are those who adhere to 


the fundamental principles upon which th» 
association was founded. 

Origin of the Free Church. 

The Free Church of Scotland was formed 
in the year 1843 by what is called the Dis¬ 
ruption, or, in other words, the secession 
from the Established Church of Scotland of 
a large body of the ministers of the Estab¬ 
lished Church, who, renounced entirely the 
pecuniary benefits of their connection with 
the Establishment in maintenance of a pro¬ 
test which they had made against the inter¬ 
ference by the civil Courts with rights which 
they considered to be the rights of the 
Church. It is not necessary to trace the his¬ 
tory of the Established Church down to 1843 
or the history of the various secessions 
which had taken place before that date, but 
it is sufficient to say that those who founded 
the Free Church separated from the Estab¬ 
lished Church not upon any question of doc¬ 
trine. but solely upon the ground which I 
have just mentioned, and which ground is 
in no way inconsistent with the principle of 
Establishment. The United Presbyterian 















28 


THE SCOTTISH FREE CHURCH CASE. 


Church was not then in existence; it was 
formed in the year 1S47 by the union of two 
Churches which had separated from the Es¬ 
tablished Church many years before and 
were lcnown as the United Associated Synod 
and the Relief Church. It is necessary to 
consider carefully what was the constitution 
of the Free Church in so far as it throws 
light upon the question raised for your 
Lordships, viz.: What were the trusts upon 
which the property in dispute in this action 
was held. The first and in fact the most im¬ 
portant question which arises in this part of 
’he case may be stated as follows: It is 
maintained by the appellant and denied by 
the respondents that the principle of Church 
Establishment was adopted as a fundamental 
or essential principle of the Free Church of 
Scotland, and that its founders made that 
principle one of the main grounds for refus¬ 
ing to join other existing Voluntary 
Churches. It cannot, I think, be doubted 
that this principle was regarded as being 
fundamental by the founders of the Free 
Church, and w'as put forward as one of the 
main ' inducements in the appeals for pe¬ 
cuniary aid, in response to w'hich a very 
large proportion of the funds and property 
now held in trust for behoof of the Free 
Church was given. Upon this part of the 
case I might content myself with adopting 
the view which is expressed by the Lord 
Ordinary, and by more than one of the 
Judges of the Court of Session. Lord Low, 
in his judgment, at page 58, expressed him¬ 
self as follows: 

“There is no doubt that the founders of 
the Free Church, when they left the Estab¬ 
lished in 1843; did so declaring'that they ad¬ 
hered to the principle of an Established 
Church, and that they seceded only because, 
as the law then stood, the Church did not 
possess that independence in what they re¬ 
garded as matters spiritual, which, in their 
view’, were essential in order to give effect 
to the cardiual doctrine of the Headship of 
Christ.” __, 

And later on, at page 59: 

“The Establishment principle (to me a con¬ 
venient short phrase) was one w'hich was re¬ 
garded as of great importance by the Free 
Church, at the commencement of its history, 
and naturally so, because, in the first place, 
it justified the action of those who had se¬ 
ceded by proclaiming that they w'ere not 
schismatics, and in the second place the 
founders of the Church hoped mat a change 
in the law might be effected which would 
enable them to return to the Establish¬ 
ment.” 

And Lord Trayner says, in even more em¬ 
phatic language, at page 89: 

“The Free Church, from its constitution, 
in 1843, down (at least) to its union with the 
United Presbyterian Church, professed the 
Establishment principle”; and at page 90: 
“It was the feature of the Free Church 
(prior to the union), which distinguished it 
from all other Presbyterian Churches in 
Scotland, that it was the only Presbyterian 
Church not connected with the State which 
professed to hold the Establishment prin¬ 
ciple.” 

I am aware their Lordships in other parts 
of their judgments expressed the view that 
the principle either cannot be regarded as 
fundamental or was one from which the 
General Assembly of the Free Church had 
power to depart. But I refer to these pas¬ 
sages at present only for the purpose of 
showing that, having regard to the views 
held by the founders of the Free Church 


with reference to the Establishment, their 
union with the two then existing Churches, 
which subsequently united to form the 
United Presbyterian Church, would not at 
that date. 1843. have been possible. 

An Essential Principle. . 

In view, however, of the great importance 
of the question, and inasmuch as opinions 
have been expressed that the principle of 
Establishment cannot be regarded as funda¬ 
mental, I think it right, as briefly as possi¬ 
ble, to examine the question for myself, and 
to state the reasons which have led me to 
the conclusion that it was regarded as a 
fundamental and essential principle of the 
Free Church at its foundation, for very many 
years afterward, and as I think down to the 
time of the union with the United Presbyte¬ 
rian Church in 1900. Reliance was placed 
by the appellants upon the language of arti¬ 
cle 3 of chapter 23 of the Westminster Con¬ 
fession, which is as follows: 

“The Civil Magistrate may not assume to 
himself the administration of the govern¬ 
ment and sacraments or of the power of the 
keys of the Kingdom of Heaven, yet he hath 
authority, and it is his duty to take order 
that unity and peace be preserved in the 
Church, that the truth of God b e kept pure 
and entire, and that all blasphemies and 
heresies be suppressed, all corruptions and 
abuses in worship and discipline prevented 
or reformed, and all the ordinances of God 
duly settled, administered and observed, for 
the better effecting whereof he hath power 
to call Synods, to be present at them and to 
provide that whatever is transacted in them 
be according to the mind of God.” 

It was strongly urged by the respondents 
that that article does not enunciate the prin¬ 
ciple of Establishment or endowment. As ! 
regards endowment the observation is prob¬ 
ably well founded; but even taking the arti¬ 
cle by itself in my opinion it distinctly em¬ 
bodies the principle of Establishment. 
Whether this be so or not is not very mate¬ 
rial upon the point of view which I am at 
present considering. The more important 
question is how was it regarded by the 
founders of the Free Church? The first im¬ 
portant document is that of the 30th of May, 
1842. This was a claim, declaration, and 
protest made by then ministers of th e Estab¬ 
lished Church before their secession. It is 
therefore not to be expected that the refer¬ 
ences to the Establishment would be very 
distinct, but a passage in the document con¬ 
tains the following words: 

“And whereas this Church, highly valuing 
as she has ever done, her connection, on the 
terms obtained in the statutes hereinbefore 
recited, with the State, and her possession 
of the temporal benefits thereby secured to 
her for the advantage of the people, must 
nevertheless, even at the risk and hazard of 
the loss of that connection and of these pub¬ 
lic benefits—deeply as she would deplore and 
deprecate such a result for herself and the 
nation—-persevere.” 

This passage of the declaration which fol¬ 
lows and the concluding words of the pro¬ 
test show that, even in a document in which 
a claim was being made by members of an j 
Established Church to spiritual independ- j 
ence, they thought it right to point out the 
importance which the signatories attached ! 
to the principle of Establishment. The prin- ! 
cipal is, moreover, emphatically enunciated j 
in the document entitled “The Protest of the 
Commissioners to the General Assembly on 
the 18th of May, 1843.” The words are of 


such importance that I think it right to 
quote them: , 

“And finally, while firmly asserting the 
right and duty of the civil magistrate to 
maintain and support an establishment of 
religion in accordance with God's Word, and 
reserving to ourselves and our successors to 
strive by all lawful meads, as opportunity 
shall in God’s good providence be offered, to 
secure the performance of this duty agree¬ 
ably to the Scriptures and in implement of 
the statutes of the kingdom of Scotland, and 
the obligations of the Treaty of Union as 
understood by us and our ancestors, but ac¬ 
knowledging that we do not hold ourselves 
at liberty to retain the benefits of the Es¬ 
tablishment while we cannot comply with the 
conditions now' to be deemed thereto at¬ 
tached.” 

It is in my opinion significant, and to be 
borne in mind, that this protest w r as one of 
the first official acts of the Free Church. As 
far as I know there is no document or evi¬ 
dence w'hich suggests that there was at. the 
time of which I am speaking—viz., the year 
1843—any doubt or difference of opinion as 
to that which was understood by the ex¬ 
pression, the Establishment principle, but it 
is sufficient for my purpose to quote two 
passages from the pastoral address of the 
30th May, 1843, which was embodied in an 
Act of the Assembly of the Free Church, and 
to which the ministers were directed to call 
the attention of their people on the 15th 
June, 1843. These passages from twt ad¬ 
dress state the principle as follows: 

“It was ever held by the Established 
Church, indeed, that the Church and the State, 
being equally ordinances of God, and having 
certain common objects connected with His 
glory and the social welfare, might and 
ought to uni-te in a joint acknowledgment of 
Christ and in the employment of the means 
and resources belonging to them respective¬ 
ly for the advancement of His cause—and 
later—so upon the other hand the State held 
directly and exclusively from God, and was 
entitled and bound to exercise under, its re¬ 
sponsibility to Him alone, its entire secular 
sovereignty, including therein whatever it 
was competent for or binding upon the 
State to do about sacred things or in re¬ 
lation to the Church, as, for example, en¬ 
dowing and establishing the Church and 
fixing the terms and conditions of that Es¬ 
tablishment.” 

These passages show clearly what was 
understood by the founders of the Free 
Church as the Establishment principle. I 
will not quote again the passage from Dr. 
Chalmers’ speech in 1843, to which such fre¬ 
quent reference was made, but it is impos¬ 
sible to read it without being satisfied that 
he at least made the principle of Estab¬ 
lishment one of the fundamental princi¬ 
ples of the Free Church, and that view Was 
adopted unanimously by the Assembly on 
the 26th May, who directed that an account 
of the proceedings of the previous meeting 
should be sent to the ministers and friends, 
w’hich account should contain Dr. Chal¬ 
mers' address as Moderator. It should be 
noted in passing that the protest of the 
18th May, 1843, was directed to be recorded 
at the commencement of the Presbytery 
books, and I have not the slightest doubt 
that those documents to which I have re¬ 
ferred were regarded by’the ministers and 
members of the Church as formulating the 
essential principles upon w'hich the Free 
Church was founded. It was a tinre of 
great excitement, and the attention of the 
Free Church ministers and their congrega¬ 
tions and friends throughout the country 













THE SCOTTISH FREE CHURCH CASE. 


29 


would be closely directed to these impor¬ 
tant documents, and I doubt not that every 
line would be closely criticised and con¬ 
sidered. 

Former Unions. 

There is. moreover, a remarkable confirm¬ 
ation of this view in the language used in 
reply to» the addresses received from' other 
Congregational Church in other parts of the 
kingdom in the year 1843. I need scarcely 
point out that in replying to such addresses 
the leaders of the Free Church would have 
no object in criticising, still less of trav¬ 
ersing, any opinions which had been ex¬ 
pressed in addresses of a friendly character 
transmitted to them. And this gives greater 
force to the language used in reply to such 
addresses, of which I would cite the two pas¬ 
sages set out in the document before us: 

"But you misapprehend the nature of the 
movement which we have made in suppos¬ 
ing that we have in the least degree al¬ 
tered our views respecting the lawfulness 
and the desirableness of a right connection 
between Church and State. History and 
experience have convinced us that there is 
a form of alliance which is at once practi¬ 
cable and agreeable to Scripture, and highly 
beneficial. We have renounced the tem¬ 
poral advantages of the Scottish Ecclesias¬ 
tical Establishment, not in consequence of 
any alteration in our views on this subject, 
but because the Civil Courts had violated 
our constitution and Parliament under the 
guidance of an infatuated Government 
which had sanctioned that violation.’’ 

I pause here to notice an argument strong¬ 
ly urged before us on behalf of the respond- 
ents. and which appears to have had weight 
with the Lord Ordinary and the Judges of 
the Second Division, viz., that the passages 
in the documents leading up to the founda¬ 
tion of the Free Church, and in the preamble 
to the Act of 1846—to which I shall refer 
—were parenthetical, and related to the ac¬ 
tion of third persons, viz., civil magistrates, 
and not of the Church itself. So far from 
weakening the force of the declaration 
couched in the terms in which it is, the 
fact, in my opinion, gives it additional 
weight. The separation was in no way pro¬ 
moted because the dissenting ministers ob¬ 
jected to the principle of Establishment; 
that principle was not attacked by the claims 
of the Courts against which they had pro¬ 
tested, and yet its recognition is considered 
of such great importance as to receive the 
prominent notice which I have quoted. 
Then, with reference to the argument that it 
relates to the action of third parties, also 
strongly pressed upon us, I am unable to 
see how such an argument assists the re¬ 
spondents. It seems to me also to give ad¬ 
ditional weight to the firm assertion of the 
light and duty of Churches to support the 
State in the performance of its duty toward 
religion by the medium and through the 
agency of an Established Church, which as¬ 
sertion the firotesting ministers were mak¬ 
ing. It seems to me, moreover, that a brief 
consideration of the Establishment princi¬ 
ple as contrasted with Disestablishment is 
sufficient to show its fundamental or essen¬ 
tial character. The one seeks to enforce 
the paramount duty of the State in its of¬ 
ficial capacity to recognize religion, to main¬ 
tain and support the Church. The other de¬ 
sires to see all connection between the State 
and the Church broken down and destroyed, 
and to prevent the State from exercising any 
pontrol whatever over the Church in any ca¬ 
pacity, and, of course, from endowing or 

'listing to maintain a Church; and if, as I 


shall point out later, the United Presbyterian 
Church certainly considered any civil Estab¬ 
lishment of religion unscriptural and unjust, 
it is difficult to understand how such a dis¬ 
tinction between the views held by two 
Churches can be regarded as otherwise than 
fundamental and essential. Nor does it 
seem' to me that the suggestion made by 
Lord Trayner that the different view taken 
on this question by the Free Church and the 
United Presbyterian is a matter of policy 
and not a matter of faith makes any sub¬ 
stantial difference. 

Free Church and Establishment. 

In one sense the questions on which the 
Free Church separated from the Establish¬ 
ment were not matters of faith. But, in my 
opinion, the difference between the Free 
Church and the United Presbyterian was a 
difference not on the mere matter of detail, 
but upon a fundamental principle. For 
these reasons I have arrived at the conclu¬ 
sion that the founders of the Free Church 
regarded the Establishment principle not 
only as one of the very greatest importance, 
but as fundamental and essential, that at 
that date union between the Free Church 
and either of the Churches subsequently 
forming the United Presbyterian Church 
would have been out of the question. If I 
am right in this view its bearing on the 
question raised before us is of the greatest 
importance. It cannot, in my opinion, be 
questioned that the documents to which I 
have referred, and the principles which they 
embody were the documents upon the basis 
of which the donors of a very large propor¬ 
tion of the trust funds, the application of 
which is in question in this case, made their 
gifts and donations, and upon the faith of 
which also the real property in question was 
conveyed. This conclusion leads one to con¬ 
sider whether the history of the Free 
Church since 1843 and events since that date 
support the view that property held for its 
behoof may without breach of trust be ap¬ 
plied for the purposes of a Church which 
supports the principle of disestablishment. 
I pass, therefore, to consider briefly the 
history of the Free Church upon this point 
from 1843 -to 1900. In the year 1846 we find 
the Church thinking it right to declare that 
she firmly maintains the same Scriptural 
principles as to the duties of nations and 
their rulers in reference to true religion 
and the Church of Christ for which she 
has hitherto contended. I regard this as 
a distinct recognition of the Established 
principle, and as in no way weakened by the 
words following, which disclaim intolerant 
or persecuting principles. Five years af¬ 
ter. in the year 1861, in a formal Act and 
Declaration of the Assembly, the principle 
of Establishment is again recognized of the 
highest importance. The words used are: 

"Holding firmly to the last, as she holds 
still, and, through God’s grace, will ever 
hold, that it is the duty of civil rulers to 
recognize the truth of Gcd according to His 
word, and to promote and support the King¬ 
dom of Christ without assuming any juris¬ 
diction in it or any power over it, and deep¬ 
ly sensible, moreover, of the advantages re¬ 
sulting to the community at large, and es¬ 
pecially to its most destitute portions, from 
the public endowment of pastoral charges 
among them.” 

Again, in the year 1S53, the Church in 
emphatic language reaffirms the principle, 
calling especial attention to that of Estab¬ 
lishment: 

"That this Church maintains unaltered and 
ur.ccmpromised the principles set forth in 
the Claim, Declaration and Protest of 1842, 


and the Protest of 1843, relative to the law¬ 
fulness and obligation of a Scriptural alli¬ 
ance between the Church of Christ and the 
State, and the condition upon which such an 
alliance ought to be regulated.” 

The Union Negotiations. 

In the year 1864, when the question cf 
union between the Free Church and the 
United Presbyterian Church w r as actually 
under discussion, the Committee of the Free 
Church stated as one of its distinctive prin¬ 
ciples that, as an act of homage to Christ, 
it is the duty of the Civil Magistrate when 
necessary or expedient to employ the na¬ 
tional resources in aid of the Church, and 
again in the year 1867 the principle is enun¬ 
ciated in even stronger language. 

“As an act of national homage to Christ, 
the Civil Magistrate ought, when necessary 
and expedient, to afford aid from the national 
resources to the cause of Christ, provided 
always that in doing so, while reserving full 
control over his own gift, ne abstain from all 
authoritative interference in the internal 
government of the Church.” 

Later, in the year 1873, when dealing with 
the question of eligibility of ministers, the 
Assembly declared that it adhered to the 
great fundamental principle of the Church, 
under two heads, the second of which was as 
follows: 

“Secondly, the prerogative of the Lord 
Jesus Christ as head over all things to His 
Church and supreme over nations and their 
rulers, who are consequently bound collec¬ 
tively and officially, as well as individually 
and personally, to own and honor His au¬ 
thority to further the interests of His Holy 
religion.” 

These passages from the proceedings of the 
Free Church satisfy me that for a period of 
thirty years after the Free Church was 
founded, the Establishment principle was re¬ 
garded as fundamental, and I doubt not that 
during that period and in reliance on that 
principle a considerable part of the property 
was given and conveyed to trustees for be¬ 
hoof of the Free Church. It was suggested 
by the respondents that the union of the 
Free Church with the Church knovm as the 
United Original Seceders in the year 1852 
and with the Reformed Presbyterian Church 
in 1876 afforded arguments in support of the 
union with the United Presbyterian in the 
year 1900. I am wholly unable to follow that 
argument. I do not propose to trace the 
history of the two Churches with which the 
Free Church united beyond saying that, as 
far as I can gather from the papers, the 
Free Church uniting with them in no way 
abandoned or altered any one of the princi¬ 
ples which it had professed in the year 1843, 
but on the contrary, both the united Churches 
represented that they were in complete sym¬ 
pathy with the Free Church. As regards the 
United Original Seceders, it is only neces¬ 
sary to examine the representation and ap¬ 
peal made by the Synod of that. Church in 
the year 1852, to see that their union with 
the Free Church was based upon and only 
consistent with the view that the Free 
Church still maintained the Establishment 
principle. In the case of the Reformed Pres¬ 
byterian Church the statement in the Act of 
Union that the united Churches accept the 
preamble to article 12 of the Free Church 
Assembly, 1846, which I have already cited, 
proves, in my opinion, that the maintenance 
of the Establishment principle was the basis 
of union between the Free Church and the 
Reformed Presbyterians. The action of the 
Free Church in the years 1882 and 1894, 
though it must be considered when consid- 











50 


THE SCOTTISH FREE CHURCH CASE. 


ering the question of the powers of the Gen¬ 
eral Assembly, has, in my opinion, very lit¬ 
tle if any bearing upou the point which 
I am at present discussing. In the first 
place thesj Acts were objected to, aud I 
would point out that, although the Act of j 
1892, which is undoubtedly of great impor- j 
tance in connection with the second branch 
of the ease, has no direct bearing upon (lie j 
question of Establishment. One of the main ; 
grounds on objection and protest was that j 
stated in the following terms: 

“Because, under the head which refers to 
Intolerant and persecuting principles, which j 
is to take the place of the present preamble ! 
to the formula, all reference to the duties 
of nations and their rulers to true religion 
and the Church of Christ as therein set forth 
is wholly omitted.” 

It now becomes necessary to consider the j 
position of the United Presbyterian Church 
in reference to the Establishment principle. 
The possibility of a union of the Free Church 
with other bodies of Christians was undoubt¬ 
edly contemplated by its founders. Two such 
unions have, in tact, taken place. It be¬ 
comes therefore of importance to consider 
whether or not the United Presbyterian 
Church was a Church with which Ihe Free 
Church could properiy unite, and whether it 
would be a breach of trust to apply funds held 
in trust for behoof of the Free Church as ! 
originally constituted to the purposes of ihe 
united body, now the United Free Church 
In my opinion this matter does not admit of 
serious doubt. 1 am aware it was argued by 
the rosponderits that the United Presbyterian I 
Church between the years 1817 and 1900 might 
without breach of trust have united with the 
Establishment or applied its funds in aid of 
Establishment, and it was contended by Mr. 
Haldane that the United Free Church could 
do so without impropriety, Without refer¬ 
ring to all the documents which. ! think, 
contradict this view, 1 would call attention 
to the view held by the United Presbyterian j 
Church as stated in the report of 1864, which 
seems to me to be wholly contrary to this 
view: 

"That inasmuch as the Civil Magistrate has 
no authority in spiritual things, and as the 
employment of force in such matters is op¬ 
posed to the spirit aud precepts of Christi¬ 
anity, it is not within his province to legis¬ 
late as to what is true in religion, to prescribe 
a creed or form of worship to his subjects, or 
to endow the Church from national resources; 
that Jesus Christ, as sole King and Hoad of 
His Church, has enjoined upon His people to 
provide lor maintaining and extending it by 
freewill offerings; and this being Christ’s or¬ 
dinance, it excludes State aid for these pur¬ 
poses, and that adherence to it is the true 
safeguard of the Church's independence." 

And again in 1867. “That li is uot compe¬ 
tent to the Civil Magistrate tq give legisla¬ 
tive, sanction to any creed in the \yay of set¬ 
ting up a civil establishment of religion, nor 
ta it within his province to provide for the 
expep$e of the ministrations of religion out 
of the national resources That Jesus Christ, 
as sole King and Head of His Church, has 
enjoined upon His people to provide for 
maintaining and extending it by free will 
offerings; that this being the ordinance of 
Christ, it excludes State aid for these pur¬ 
poses, and that adherence to it is the true 
safeguard of tlm Church’s Independence.” j 

Moreover, though uniformity of opinion j 
with respect to civil establishments of yelig- | 
ion is not a ter-m of Communion ip the Uni¬ 
ted Presbyterian Church, yet the views on 
this subject held and universally acted upon 
are opposed to these institutions. 


Court of Session ■fpilgmenlt. 

Further. I am wholly unable to reconcile 
this argument with the statement proved in 
evidence and made on behalf of the United 
Presbyterian Church. In 1897 a tract. No. 
25, prepared by tlic committee of the United 
Presbyterian Church on the disestablishment 
and disendowmenl of the Established 
Churches of England and Scotland, was is¬ 
sued by the United Presbyterian Church, 
and sent to all the ministers of the Free 
and Established Churches, fn that tract not 
only is it stated that the United Presbyte¬ 
rian Church maintains as one of its most 
distinctive principles, that it is not the prov¬ 
ince of the Stale to establish and endow the 
Christian Church, but that civil establish¬ 
ments of religion are un3criptural aud un¬ 
just. In the face of these documents, it seems 
impossible to adopt the contention of the 
respondents But here, again, I should be 
justified in relying upon the opinion of their 
Lordships in the Scotch Court, in the course 
of his judgment Lord Low said: 

“On the other hand, it seems to rae to he 
equally certain that the United Presbyter¬ 
ian Church never read the Confession of 
Faith as laying down that it is the right and 
duty of the Civil Magistrate to maintain and 
support an Established Church. There does 
not appear to be any material difference be¬ 
tween the two Churches upon the point, so 
far as their standards are concerned; but 
the view of ihe United Presbyterian Church 
as a whole has always been that it is not 
within the province of the Civil Magistrate 
to endow the Church out of public funds, 
aud that the Church ought to be maintained 
by the free will offerings of its members.” 

Lord Trayner, moreover, states in em- 
pnauc terms that the United Presbyte¬ 
rian Church had throughout the w r bole 
period of its existence repudiated the Es¬ 
tablishment principle. With reference to 
the attitude of the United Free Church and 
the possibility of its adopting a different 
view, the statements in the resolution of 
the Assembly of the United Free Church 
passed in the years 1901 and 1902, to the ef¬ 
fect that the Establishment was objection¬ 
able on principle, and recording its testi¬ 
mony in favor of Disestablishment of the 
Established Church of Scotland, which state¬ 
ments were not attempted to be qualified by 
the counsel for the respondents, are, in my 
opinion, conclusive against any such eepten- 
t ion. 

The Union Documents. 

ihe only argument on this point remaining 
to he noticed is that which was founded upon 
(he documents agreed to by the Assembly of 
the Free Church and the Synod of the United 
Presbyterian Church at the time of union. 
These dpeuments transfer and convey all .he 
property and funds of the Free Church of 
Scotland to the united body, but it was said 
that the modified forms of question formu¬ 
lated by the General Assembly of the United 
Free Church in the year I960, were not in¬ 
consistent with the principle of Establish¬ 
ment in so far as that was a fundamental 
principle of the Free Church, and that office 
bearers were left free to hold their own in¬ 
dividual views on this question, if I am 
right in the view which I have endeavored 
(p express, that the principle of Establish¬ 
ment wps regarded by the founders of the 
Free Church as a fundamental principle of 
the Church, and was so maintained for a 
period of mole than thirty yeaVs after its 
foundation, the fact that the Free Church of 
Scotland in uniting with a Church pledged 


to Disestablishment principles, and regard¬ 
ing cjvil Establishments of religion as tin- 
scriptural and unjust, had agreed to treat the 
matter as an open question seems to me 
entirely beside the mark- For the purposes 
of the present discussion the respondent? 
! must justify, not only a nominal union, but 
j the claim to apply the trust funds rb the pur- 
j pose Of the united body, and so dispossess 
as they have attempted to do, the Free 
Church ministers who have declined to Join 
the United Free Church from the possession 
I of the manses and churches. Unless the 
respondents can make good their point that 
the application of the moneys for the purpose 
of the united body does not amount to a 
breach of tru3t, the fact that they agreed for 
the purpose of the union not to raise auy 
question cannot afford a justification. 

The Model Trust Deed. 

The only remaining point which requires 
notice upon this part of ihe case is the ar¬ 
gument that the terras of the Model Trust 
Deed, wdiich was settled by a committee of 
the Free Church and approved by the As¬ 
sembly in 1844. justifies transfer of the prop¬ 
erty to the united body. This argument is 
based mainly upon the first and fourth 
Trusts, and incidentally upon the ninth 
Trust. The object of this Trust Deed was 
undoubtedly to insure that ihe property 
should be held for the purposes of the Free 
Church as originally constituted, it pro¬ 
ceeds upon a general outline of the History 
of the Established Church, the Disruption 
and the subsequent formation of the Free 
Church. The first Trust was, in my opin¬ 
ion, a provision not unnatural from a con¬ 
veyancing point of view that the Trust 
should not, cease in tHe event ot ihe Free 
Church of Scotland uniting wiih themselves 
other bodies of Christians. It would, in my 
judgment, bo contrary to every rule of law 
applicable tq such a case lo hold that it gave 
the Free Church Assembly power, by mere 
union, to divert the fuuds to a body which 
did not conform to the fundamental princi¬ 
ples of the Free Church. Still jess can the 
respondents rely upon the fourth Trust, 
which was the natural sequence of the re¬ 
cital as to the continuation of the form of 
Church government by kirk-sessiqns Pres¬ 
byterians, provincial Synods, and General 
Assemblies, and bestowed upon the General 
Assembly of the Free Church the same pow¬ 
ers as- those which had been enjqyed and 
claimed by the Assembly of the Established 
Church. The ninth clause uot only affords 
no argument for the respondents, bur. inci¬ 
dentally supports the contention of the ap¬ 
pellants. The majority who consented to the 
union with the United Presbyterian Church 
djd not purport to carry out the object of 
the protest of the 18th May, 1843, more faith¬ 
fully than the appellants, who are the mi¬ 
nority. Clause 9 only contemplates au ap¬ 
portionment or division in the event, of a sec¬ 
tion not less less than one-third of the whole 
of the ordained ministers claiming to be car¬ 
rying out the objects of the protest more 
faithfully than the others. In my opinion 
this accentuates the extreme importance at¬ 
tached by the Church at its foundation to 
the protest of the 18th May, 1843, and would 
make it entirely ultra vires of a section of 
ministers purporting to act under the ninth 
Trust, to disregard the assertion of right 
and duty therein made, and to claim under 
this clause to associate itself with a body 
which was openly promoting disestablish¬ 
ment. It is contended by the respondcMits-*- 
and this is really the foundation of the 
judgment of Lord Young—that the General 




















1 HE SCOTTISH FREE CHURCH CAST. 


31 


or destroy fundamental aid essential princi¬ 
ples of the Church 

The Declaratory tt'ts, 

1 have now to say a few words upon the 
second point upon which reliance was placed 
by the appellants, to the effect that the Free 
Church, by its acts of 1892 and 1894, and the 
Assembly of the United Free Church by their 
Acts of October, 1900, with reference to the 
questions and formulae to be used in the or¬ 
dination and induction of ministers and 
office-bearers, have departed from the funda¬ 
mental principle of the Free Church in the 
matter of doctrine, and particularly in rela¬ 
tion to the doctrine of predestination and 
free will as set forth in the Westminster 
Confession. For reasons which I will briefly 
state, had this been the only ground upon 
which exception could be taken to the action 
of the Assembly of the Free Church, I am 
not at present satisfied that it has acted 
in excess of its powers. I do not wish to 
express a final opinion, as I do not consider 
it necessary for the purpose of determining 
the legal rights of the parties in these ap¬ 
peals, and further consideration might satis¬ 
fy me that the objection by the appellants 
that the Assemblies of the Free Church and 
the United Free Church have released their 
ministers and office-bearers from adherence 
to the Westminster Confession, as such lias 
more weight than 1 am at present disposed 
to attach to it. Oh the other hand, the ar¬ 
gument of the Dean of Faculty and Mr. 
Haldane satisfied me that there are passages 
in the Westminster Confession and in other 
standards of the Church which might re¬ 
quire explanation and exposition which 
would fairly come within the words used in 
the Barrier Act, 'alteration in doctrine." 1 


do not feel myself competent, at any rate 
upon the information at present before me, 
to express any final opinion upon such a 
point, and I do not therefore propose to base 
my judgment upon iho second ground which 
was urged before us on behalf of the appel¬ 
lants. 

ItiK'htM of \i>i<e 1 Innt 

It only remains to consider the position 
of the appellants and their rights as a 
minority of the ministers and elders of the 
Free Church, representing congregations or 
portions of congregations who are not pre¬ 
pared to join the United Free Church. It 
is mt contended that they have changed 
their principles. It is not urged that they 
have departed from any fundamental or es¬ 
sential principle of the Free Church. It is 
not alleged that they are not faithfully car¬ 
rying out the objects of the Protest of the 
18th May. 1843. The respondents are 
theatening to attempt to eject them from 
their churches and manses, and to deprive 
them of any right to participate in any 
funds of the Church, simply on the ground 
that they decline to become members of the 
United Free Church The decision of the 
Court of Session in Craigie v Marshall and 
Couper v. Burns, unless overruled by your 
Lordships’ House, are wholly inconsistent 
in my opinion, with any such right on the 
part of the respondents, and I am unable 
to support a judgment which would deprive 
the persons forming a minority of their 
rights simply upon the grounds that they 
are unwilling to become members of a body 
which has nut only abandoned a fundamental 
1 principle of the Church to which they be¬ 
long. but supports a principle essentially 
different from that on which that Church 
was founded. For these reasons I am of 
opinion that the appeal should be allowed. 




Formal Decision. 


Assembly has power to legislate in such 
matters and to abandon the Establishment 
principle, even though and notwithstanding 
that it may have been one of the funda¬ 
mental principles of the Free Church. This 
question has a bearing upon the second 
crouud relied upon by the appellants, viz., 
that the Assembly of the Free Church had 
departed from the Westminster Confession 
and the standard of the fhurch. and had 
made changes iu doctrine inconsistent with 
the fundamental principles of the Free 
Church. The powers of the Assembly of 
the Free Church were in my opinion no 
greater in relation to the fundamental prin¬ 
ciples upon which the Church was founded 
than were the powers of the Assembly of 
the Established Church. If 1 am right in 
the \ iew which I have ventured to express, 
that paragraph 3 of article 23 of the West¬ 
minster Confession, and the documents to 
which I have referred as showing the funda¬ 
mental principles upon ..which the Free 
Church was founded, did make to adopt once 
more the language of the Act of 1873 the 
Establishment principle oue of the great 
fundamental principles of the Church. I am 
wholly at a loss to understand upon what 
ground it can be said that the Assembly 
either of the Established Church or of the 
Free Church had the right to permit its 
ministers and elders to depart from that 
principle. I agree that the Barrier Act up- 
op which so much reliance was nlaeerj by 
the respondents, (hough it confers no new 
powers, recognizes that the General As¬ 
sembly possesses some powers of altera¬ 
tion with reference to doctrine, worship, 
discipline, and government, but they do not 
In my opinion include a power to subvert 


The 


The Lord Chancellor then moved: 

That the order appealed from be reversed, 
and that the respondents pay to the appel¬ 
lants the costs both here and below. The 
order of their Lordships, therefore, will be 
that, the judgment will be reversed in both 
actions. 

In the leading action the cause will be re¬ 
mitted to the Court of Sessions to declare in 
terms of the third and sixth declaratory con¬ 
clusions of the summons for any necessary 
consequential proceedings. In the appeal 
Macallister v. Young, the action will also be 
remitted to the Court of Sessions to soilzie 
the appellants from the conclusions of the 
action. 

This motion and procedure was agreed to. 
Terms of Conclusions. 

It may be explained that the third and 
sixth declaratory conclusions of the sum¬ 
mons referred to in the decision of the 
House are as follows. 

(3) That the said United Free Church of 
Scotland has no right title or interest in 
any of the said lands, property, or fundis; 


and (6) that the pursuers and those adher¬ 
ing to and lawfully associated wjth them 
conform to the constitution of the Free 
Church of Scotland, and lawfully represent 
the said Free Church of Scotland, and are 
entitled to have the whole of the said lands, 
property and funds applied according to the 
terms of the trusts upon which they are 
respectively field for behoof of themselves 
and those so adhering to and associated 
with them and their successors, as consti¬ 
tuting the true and lawful Free Church of 
Scotland; and that defenders, the said Right 
Hon. Janies Campbell White, Lord Ovcrtoun 
and others, as general trustees aforesaid, or 
the defenders second enumerated, or those 
of the defenders in whose hands or under 
whose control the said lands, property and 
funds may be for the time being, are bound 
to hold and apply the same (subject to the 
trusts aftermentioned) for behoof of the pur¬ 
suers and those adhering to and associated 
with them as aforesaid, and subject to the 
•awful orders of the General Assembly of 
the said Free Church of Scotland or its duly 


appointed Commission for the time being; 
and in particular that they are bound to 
denude themselves of the whole of said 
lands, property and funds in favor of such 
parties as may be nominated as general 
trustees by a General Assembly of the Free 
Church of Scotland or its duly appointed 
Commission for the time being, but subject 
always to the trusts upon which the said 
lands, property and funds were respectively 
held by the said defenders for behoof of the 
Free Church of Scotland as at 30th October, 
1900. 

Utt? /! 

Counsel in the r ' 

Counsel for the Appellants—Mr. Henry 
Johnston. K.C.; Mr. Edward T. Salveseu, 
K.C., and Mr. J. R. Christie. Agents Simp¬ 
son & Marwick, W.S., Edinburgh, and Decon, 
Gibson. Medeaif & Marriott. 

Counselor for the Respondents—Mr. Asher, 
K. C. (Dean of Faculty), Mr. Haldane, K.C.; 
Mr. Guthrie, K.C.. and Mr. R. L. Orr. Agents 
—Cowan & Dalmahoy, W.S . Edinburgh, and 
Graliames, Currey & Speus, Westminster. 










THE SCOTTISH FREE CHURCH CASE. 


32 


;, f5V"r 

Pol pit Utterances. 

\ - . s 

On Sunday, August 7, there was a very general expression of opinion on the decision of the Lords in the 
pulpits throughout Scotland. The British Weekly of August 11 published a number of reports of such deliverances, 
which are here given. These will help the reader to a clearer comprehension of the interests involved in the case. 


Rev. Professor Orr at Erskine Church, 
Burntisland. 

One thing that may be said, which lies on 
the surface, is that the matter cannot end 
where it now stands. A decision of an Eng¬ 
lish House of Lords reversing the unani¬ 
mous judgment of our highest Scottish 
Court in a matter so peculiarly our own as 
the rights and powers of our Churches—a 
decision not even there unanimous, and 
which, but for the unexpected death of 
Lord Shand after the first hearing a few 
months ago, would, as everyone knows, have 
been the opposite of what it is—a decision 
which overrides the view taken, and as it 
still believes rightly taken, of its own con¬ 
stitution by the great majority in the Free 
Church since the days of the Disruption, and 
which hands over to some twenty or thirty 
Highland ministers and their adherents the 
entire property, amounting to millions, of a 
vast Church of 1,100 congregations and 300,- 
000 communicants—is one that can never, in 
either law' or equity, stand, and could never, 
even if it w'ere attempted, be made operative. 
The remnant Church could not, if it would, 
administer so vast and complex a trust either 
at home or abroad. What steps may have to 
be taken to rectify this glaring injustice, at 
what point precisely the sword can enter 
which is to cut the knot, I cannot tell, but 
it is self-evident that some way out of the 
impasse must be found. If a precedent does 
not exist—and I suppose the case is one ab¬ 
solutely unprecedented—one will have to be 
created. There is another thing, and only 
one other, I will venture to say. This is a 
decision which affects all Churches and 
is bound, and speedily, to develop results 
of a magnitude which no one can yet 
fully foresee. Our own former United 
Presbyterian congregations, though in 
point of form not touched by this judg¬ 
ment, are in reality deeply concerned in it. 
It means that in 1SS0, when we passed our 
own Declaratory Act, wnlch happily we 
did unanimously, if any dozen or score of 
ministers had chosen to protest and to con¬ 
stitute and call themselves the Synod of 
the United Presbyterian Church, they would 
in law' have been entitled to have the whole 
property of that Church, so far as it was 
not independently secured, handed over to 
them—Synod buildings, college endowments, 
church funds and possessions of every kind, 
while the main body of tne Church, the. 
whole, except that fraction, was absolutely 
dispossessed. Such a judgment would justly 
be pronounced monstrous: yet it is precisely 
such a fate which has overtaken the Free ! 
Church it the present moment. Our inter¬ 
ests as members of the United Church are 
therefore bound up in the closest way with 
those of our brethren on whom the blow 
more immediately falls, and I have no doubt 
that we will be found standing shoulder to 
shoulder with them >n this common cause 
of the essential liberties of a Church of 
Christ. One thing wc may be assured of is 
this: that this fire of adversity will not de¬ 
stroy. but will purify, and in the end will 
weld and immensely strengthen the United 
Church. It. will shake the Church out of the 
lethargy of self-ease and feeble grasp of first 
principles, and will throw' it back, as it has 
not been thrown back for generations, on 
faith in God, on the meaning of its own doc¬ 
trines and principles, on the great ends for 
which the Church of Christ exists. It will be 


found, if I mistake not, that the spirit which 
animated the great men of the Secession and 
the Disruption is not dead, and that those 
things which seem for the present to be 
against us are in reality, in God’s wonderful 
providence, in the truest sense for us. 

J* J* ^ 

Rev. R. Bruce Taylor, FerryhilJ Church. 

Aberdeen. 

The Rev. R. Bruce Taylor. Ferryhill 
United Free Church, said there was one 
great difference between the situation in 
1843 and the situation of to-day. For ten 
years before the Disruption the conflict haa 
been going on, and the spiritual issues had 
been kept constantly before the eyes of the 
Church. The result w'as that those years 
of conflict were at the same time years of 
intense spiritual fervor, and while the ques¬ 
tion w'as being fought in the Law Courts 
the home and foreign mission work was be¬ 
ing prosecuted with a zeal altogether new'. 
But this decision had come upon them like 
a thunder-clap, and it had been pronounced 
not directly upon the question of property. 
Their danger was that the material side 
of the matter should be so kept before their 
eyes that the real issue, spiritual freedom, 
should be obscured. 

j* it 

Rev. John M. Sloan, Grange, Edinburgh 

The Free Church of 1843 would have re¬ 
pudiated the idea of being a mere wooden 
joint stock company, bound for ever to every 
detail and expression of its own Confession 
of Faith—much less bound for ever by the 
fervid utterances of the Disruption time, 
it regarded itself, from the first, as a living, 
growing, spiritual organization—to be main¬ 
tained and extended, year by year, by mem¬ 
bers in sympathy with its life, aims and ad¬ 
vancing outlooks. The Disruption memory, 
indeed, was ever prized; but a larger, strong¬ 
er life had entered, and the Free Church re¬ 
joiced in its great mission, and in the won¬ 
derful way in which its branches were reach¬ 
ing out into all the earth. Its dimensions 
grew, its aims grew', its spirit enlarged, and 
its creed must also feel the power of the 
new' life. In bygone yearsj the Church felt 
constrained to qualify its Confession—e. g., 
chapter xxiii—and to repudiate “persecuting 
principles,” w'hich it seemed to some to 
countenance. In later years (1892) it felt 
constrained, for the relief of some con¬ 
sciences, by the Declaratory Act, to insist 
cn the Love of God as warranting the proc¬ 
lamation of a free gospel to every creature. 
Few ministries in Scotland had done more 
to widen the scope of the proclamation of a 
free gospel in our land than that of the 
honored founder of ln : s very congregation— 
the late Dr. Horatius Bonar. What would 
the reverend writer of the “Kelso Tracts” 
have said to the Lord Chancellor’s dictum— 
that to proclaim an unfettered gospel w'as to 
violate the Calvinism of the Confession of 
Faith, and to be guilty of Arminianism? He 
asked himself, Could Dr. Bonar have belonged 
to that new' Church bound hand and foot, by 
the recent deliverance, to a Confession so 
interpreted by the highest legal authority 
in the land? 


The Rev. Dr. Ross Taylor, Kclvinsido, 
Glasgow. 

It seemed somehow to be assumed that 
the Church in 1843 started with the posses¬ 
sion of immense revenues amassed through 
the eloquence of Dr. Chalmers, and that 
these had been the mainstay of the FTee 
Church until now. Most of the churches 
then erected had crumbled into ruins, ami 
the accumulated funds of the Free Church 
during the first ten years of its existence 
amounted to the petty sum of £18,000. The 
great proportion of the Church’s funds now 
in hand were contributed since 1872, the 
year when the Church solemnly declared 
that there was no bar in principle to union 
with the United Presbyterian Church. It 
was in full view of the declaration that 
denors in the last thirty years intrusted their 
money to the Church. Little did they expect 
that, the realizing of their and the Church’s 
hopes regarding the union would involve the 
forfeiture of their gifts. * * * The trend 
of public opinion pointed to the conclusion 
that the judgment as it stood could not be 
worked out. The case was one in 
which Parliament, while not questioning 
the decision in point of law, was bound 
tc see that the best and highest in¬ 
terests of the country were not to 
receive gross injury. Nor need they anti¬ 
cipate any fighting about this, for their 
brethren who had come off victorious must 
be as sensible as they w'ere that an impos¬ 
sible situation had been created, out of 
which extrication must be found for their 
own sake as well as for theirs. There were 
other considerations suggested by the pres¬ 
ent crisis. Reflecting men could not fail 
to ask themselves what w r as to be the bear¬ 
ing of this judgment on the future Church 
life of Scotland. Ihe stringent law as to 
the Confession bore on other Churches as 
well as theirs, and not least on the Es¬ 
tablished Church. For some years past not 
a few of their brethren in that Church had 
been agitating for some relaxation of the 
bonds in the matter of creed which the 
alliance to the State imposed on them; hut 
now it appeared that behind these there 
were other bonds making it impossible for 
them to modify or alter anything in the Con¬ 
fession without incurring the penalty im¬ 
posed in the case of the Free Church. Ho 
could not refrain from uttering the fervent 
hope that Presbyterians, alike established 
and unestablished, might stand shoulder to 
shoulder in this crisis, and that from every 
parish and Church Court in Scotland there 
might ring out the cry that, the Church of 
Christ must be free to express its living 
faith. If they joined hands and voices to 
gain this boon for their Scottish Church life, 
might they not hone matters might not rest 
there?* 

^ 

Rev. Dr. Black, Inverness. ~ * 

Dr. Black observed that the building in 
which they were worshipping that day w r as 
not nt'w their property. They might have 
to worship on the hillside, but they wftuld 
still be a*, the Master’s feet. He announced 
that on Wednesday evening the usual week¬ 
ly prayer meeting would bo devoted to a spe¬ 
cial prayer meeting for blessing in the spe¬ 
cial circumstances in which they were situ¬ 
ated as a Church. 











33 


THE SCOTTISH FREE CHURCH CASE. 


Rev. P. A. Gordon Clark, West Church, 
Perth. 

The true significance of the judgment was 
well expressed by the Rev. P. Gordon Clark, 
who said: “We are met for the first time in 
a building not our own, which we only oc¬ 
cupy by the courtesy of our opponents. 1 
l.ve in a manse which does not belong to us, 
but to another ecclesiastical establishment. 
The olfice bearers have acked me to say that, 
as far as they seq their way, their course is 
clear. They intend to stand shoulder to 
shoulder together for the right of Christ to 
rule in His own Church. There were two 
courses open to the congregation, and one of 
them was compromise. He would not dis¬ 
guise from them that compromise might fail. 
Then they and he would have to decide two 
things. They must go back not to the Free 
Church of 1843, but to the little Free Church, 
as its constitution had been defined, or they 
must stand where they were and be prepared 
to suffer, If the constitution of the Church, 
was that the Westminster Confession of 
Faith never could be altered, that the Es¬ 
tablishment principle must be maintained, 
and if'he must hold that God had so or¬ 
dained some boys—possibly his own boy—to 
eternal damnation, so that he could not 
plead with him to give himself to Christ, it 
was quite clear he could not preach those 
e.octrines, and he could not be a member, he 
could not be a minister in that Church." 

O* & 

Rev. Dr. Ross, Westbourne, Glasgow. 

The House of Lords had decreed that the 
Free Church by passing the Declaratory Act 
was guilty of a breach of trust. That was, 
it was guilty of a breach of trust in allow¬ 
ing freedom of opinion about the creation of 
the world in six literal days, in qualifying 
the rigorous doctrine of the divine decrees 
by emphasizing the love of God, in magnify¬ 
ing the freedom of the Gospel and human re¬ 
sponsibility, in recognizing diversity of 
opinion on points in the Confession which 
did not enter into the substance of the faith 
According to the decision the Free Church, 
if she were honestly to carry out the trust, 
was bound for all time neck and heel to the 
Confession of Faith, and to the Confession 
oi Faith as its §tatements were interpreted 
by the generation in which it was drawn up. 
Let them thank God for their deliverance 
from such a position. It was but a poor ser¬ 
vice which could be rendered to the twen¬ 
tieth century, with its new' problems and new 
outlooks, by a Church which thus permitted 
itself "to be bound by the seventeenth cen¬ 
tury. Even if we have to pay a heavy price 
for the Declaratory Act. it was a price worth 
paying. The interests of Christ’s kingdom 
with the new generation which was rising up 
among us were bound up with a juster inter¬ 
pretation of the mind of Christ than is rep¬ 
resented by the seventeenth century. They 
might go forward, they w'ould not go back 
upon the Declaratory Act. 


Remarkable Sermon by the Free 
Church Moderator. 

The Rev. Murdo M’Queen, Kiltearn, Mod¬ 
erator of the Free Church, preach** J i- hj s 
own pulpit at Kiltearn. 

“He said it had been declared that they 
were the Free Church of Scotland. It was a 
matter of thanksgiving and gratitude to all 
Free Churchmen throughout the land. In 
his college days he had heard Dr. Begg say: 

Thank God for the House of Lords.’ From 
the bottom of his heart he echoed the say¬ 
ing. After referring at length to the various 
points raised in the decision he went on 
to say that he now saw that the professors 
of the United Free Church were already be¬ 
ginning to roar and shriek and yell; and 
why? Was it because the doctrines of the 
Confession of Faith w'ere undermined, or be¬ 
cause the word of God had been mutilated? 


No, but because they had lost every penny 
of their salaries. It was neither just nor 
right to divert these funds to the propaga¬ 
tion of error and falsehood, and all that 
was in opposition to the Word of God and 
Confession of Faith. 

“When the union was accomplished in 1!)00, 
on the eve of winter, thus hoping that they 
might starve them out of their manses and 
frighten the ministers into compliance with 
their trickery and low, mean practices— 
(laughter) there was a warning sent down 
to him warning him out of his manse and 
our of the church, and also the chapel. He 
did not know if he should send it back as a 
present or frame it and hang it up in his 
study as a memento of the kindly feelings 
entertained towards him and all that sym¬ 
pathized with him. (Laughter.) It is wast¬ 
ing pity to extend it to these men, who, if 
they had the, power, would crush us under 



The Rev. Murdo Macqueen, of Kiltearn. 


their heel. The millions have been restored 
to the Free Church, and the verdict of the 
House of Lords couldn’t be reversed, not¬ 
withstanding all the bellowing and rohring 
and shrieking of the U. F. body. ‘Are you 
willing to give us a share?’ they asked. 
Were the U. F. Church, willing to give them 
a share? Had they not shut the Free 
Church out? I say ‘No. We cannot give 
them a share. The Free Church could not 
part with one shilling of its funds, or a 
stick or stone of its property, because it 
had been given to ;he Free Church, and it 
is to be expended and used for Free Church 
purposes, and it would be stealing to give 
away these funds to the body that has left 
the Free Church.’' He did not call the ma¬ 
jority a church. It was a politico-ecclesias¬ 
tical caucus. He had said so in the begin¬ 
ning. He said so yet. He had also called it 
a Noah’s ark, full of clean and unclean ani¬ 
mals. with the unclean element predomin* 
ating, with the low'er animals sinking low 
in the water, and about to disappear under 
th^ waves. He stood by that also. What 
would they call them now'? For the present 
he called them—let them be pleased or not, 
it did not matter—a feather’s weight. The 
Moderator of the United Free Church, speak¬ 
ing at Forres, had referred to the decision as 
a calamity. He did not deny that it might 
be a calamity. But he said this, that they 
had brought upon themselves the righteous 
retribution of the Most High for their un¬ 
faithfulness to God. He had held for years 
that it would be well to get rid of these 
Principals and Professors, and they had got 
rid of them, and a good riddance they were 
for the Free Church cause and the Free | 
Church of Scotland. It would be wasted | 
sympathy to waste it upon them. The Free i 
Church had to bless the Lord for his great j 

deliverance ♦hat da.v- 1 


Rev. Lewis Davidson, Mayfield, Edin¬ 
burgh. 

I trust that our congregations—office bear¬ 
ers and members—will recognize that we still 
exist—the United Free Church of Scotland— 
and thqt at this present moment w r e have a 
work to be sustained without pause. We 
have dropped nothing. I do not believe that 
the judgment of the House of Lords will 
produce what has been called “a cataclysm 
of disintegration.” Are we to cease sup¬ 
porting the Gospel ministry throughout the 
country? Are we to abandon our students 
and professors? Are we to drop our home 
mission? Are we to retire from the foreign 
field? It is unthinkable. * 0 * We must 

not be diverted from practical, present, press¬ 
ing duty by entering upon a discussion of the 
reconstruction and reunion of Scottish T re3 ‘ 
byterianism on a large scale. * * * The 
members and ministers of the United Free 
Church of Scotland are unexpectedly called 
to preserve their very existence as a living 
organization, and to do this, under the hard 
conditions imposed by the recent judgment, 
will tax all our energy and test all our loy¬ 
alty. Sacrifices will have to be made. And 
they will be made. 

Rev. Dr. W. M. Macgregcr at St. 

George’s, Edinburgh. 

A judgment of the character that had been 
delivered made it certain that emancipation 
would come through their suffering to the 
other Churches in Scotland speedily. They 
wished to look upon it somehow as contain¬ 
ing a gracious meaning. It Opened questions 
of readjustment and reunion, and in these 
questions they of the United Free Church 
must be willing to play their part, to show 
generosity and fairness,.to others. He did. 
not think any greater calamity could come 
to Scitland than that out of this decision 
there should arise nt least two great 
Churches connected respectively with the 
two political parties, one of them aggress¬ 
ively voluntary, and one of them committed 
absolutely to Establishment at any cost— 
one of them Radical, and the other more or 
less Conservative. He thought it was neces¬ 
sary that those of them who were not volun¬ 
taries of the aggressive type, those of them 
who represented in the Free Church the 
more conservative and the more cautious 
elements, should be very careful to abide 
where they were to strengthen that side of 
the Church’s life, in order that when, in the 
providence of God. real movements of recon¬ 
ciliation were begun, their united Church 
might be able to bring a contribution worthy 
of the history of the united Church, not a 
stunted and partisan contribution, but some¬ 
thing as large and varied and generous as 
the Church of Jesus Christ ought to be. 

Rev, i). M. Macalister, Buccleuch- 
, Greyfriars (F. C.), Edinburgh. 

He was very glad to know that the ReY- 
Robert Gordon had been spared to know 
that the building had been restored to its 
former position, and he had to congratulate 
the office bearers, who were “interdicted 
and prohibited”—in so far as the United Free 
Church could interdict and prohibit them— 
who had been spared, with one exception, to 
see the end of this conflict. Perhaps it was 
a pity that it took a revolution to do this; 
but it had been so in God’s providence, and 
it was for them to rejoice and be glad in 
Him who had wrought this great deliverance 
for them. Let them see that they made good 
use of that house of God, which was now 
their very own. They were not in it by the 
will of any man, but with the will of the 
Supreme Court of this realm at their back, 
declaring that this was their own house of 
God. Let them ask for guidance in that 
solemn position which they now occupied; 
and let them be glad that the principle which 
their Church held was declared by the high¬ 
est. Court in the land to be true. _!- 




















3-> THE SCOTTISH FREE CHURCH CASE. 


Rev. Dr. Wells, PollokshielJs, West 
Church, Glasgow. 

As to their own congregation, the decision 
did not affect them at all, as neither the 
buildings of their own church nor of the 
daughter church in West Scotland street 
were under the Model Trust Deed. In fact, 
there were, he believed, at least 300 
churches in the Free Church that were not 
touched by this decision—not being under 
the Model Trust Deed. There were about 
750 churches under the Model Trust Deed, 
and these would have some cause for anx¬ 
iety. He had never felt greatly alarmed 
about this, for the simple reason that while 
keenly feeling that this was law—and they 
must accept it. as law—he supposed the 
judges thought—though they did not say 
se—that it was not justice. There was an 
instinct of justice in all Christian hearts; 
there was an instinct of justice throughout 
Great Britain. There was, he thought, jus¬ 
tice in Parliament and Parliament could in¬ 
terfere with authority, and declare and leg¬ 
islate that if law was not justice they 
could secure justice. He had no doubt that 
the loss, while very serious to some, would 
he comparatively small in reference lo the 
possession and the resources of the Church. 

J- 

Rev. Dr. Henderson, Crieff. 

The crisis that had come upon them 
pressed the question whether the Lord Jesus 
w r as their only Head, and whether His Word 
was their only standard. Several of the va¬ 
rious complex questions involved in the de¬ 
cision of the House of Lords were better 
fitted for discussion on the public platform 
than in the pulpit, but lie had read with 
thanks as well as admiration the w r ords of 
one of the judges w'ho said he would neither 
direct nor help the Church to subordinate the 
Scriptures to the Westminster Confession. 
He hoped and believed that this judgment 
w'huld prove to be for the strengthening of 
the Church and the prosperity of the King¬ 
dom of Christ. 

,_** J- 

Rev. William Muir, Blairgowrie. 

As to what w'as to be done, he said it was 
hardly possible that some settlement would 
not be arrived at when nearly every influen¬ 
tial newspaper, including the Times and the 
Scotsman, is agreed that those who have won 


at law must see to it that a way of escape 
is found from the situation which the Glas¬ 
gow’ Herald has described as “positively 
monstrous. - Meantime, they would go on 
quietly with all their work until they were 
interfered with by some competent authority, 
as they might never be. 

«.* 

Ret. li. \V. Bell, Moderator of the 
liniteo. Free Presbytery, Aberdeen. 

He thought the leaders of the Church 
erred in one or two points—in not consult¬ 
ing the Law Courts before the union, so as 
to have a proper basis which could entitle 
them to enter upon it without loss of prop¬ 
erty, and especially in the treatment which 
was meted out to the minority. The Church 
should have at the very beginning offered 
them a portion of the funds and buildings, 

.* .* 

Rev. Professor Marcus Rods. 

Introducing the Rev. G. D. Low to the nas- 
torate of Bast Wemyss United Free Church 
on Sunday morning. Dr. Dods said that the 
settlement of their new minister was made 
at a most interesting and momentous crisis 
in our Church’s history—a crisis which must 
inevitably turn the thoughts of serious men 
to the old and persistent Scottish question, 
What is a Church and what are her rights? 
The answ’er of our Church will be the same 
as has always been given by the Evangelical 
party—that the Church is not merely a branch 
of State service, but must have freedom to 
order its own affairs, to follow the truth, to 
obey her Lord. In their new minister they 
had a man of independent spirit, of keen and 
strong mind and of loyalty to evangelical 
views. 

^ ^ 

Rev. Dr. Robson at Alyth. 

It. was for the Free Church to initiate 
action, and they of the United Free Church 
would readily concur and aid in fitting pro¬ 
cedure toward the end in view. They had 
done a great and right thing when they 
formed the United Free Church. It w'ould 
be unbelief and treason to the very idea of 
the Church of Christ to entertain the mis¬ 
erable idea of going back upon that true and 
splendid deed. The present crisis seemed 
designed for the annealing of the United 
Free Church. 


tJzJm 


The Rev. P. Carnegie Simpson in Ren- 
field Church, Glasgow. 

Amid all the confusion, the main thing is 
plain. We hold, or shall hold, to the liberty 
of Christ’s Church, and that at any cost. Our 
fathers in 1813 declared by their heroism that 
they valued it more than all the pay and 
privilege of the Establishment. We must 
say to-day—it is not yet clear how much it 
will demand of us—that we value it more 
than all our property. And w'hat this practi¬ 
cally means is this—that we stand by the 
Declaratory Act and by the Union as never 
before. Hitherto the former was a mere the¬ 
ological statement, and the latter a step ob¬ 
taining consent rather than arousing enthu¬ 
siasm. But now these things are the rally¬ 
ing points w'hen we have asserted and shall 
continue to assert the great historic princi- 
and be responsible not to any human being, 
but only to Christ in the articulation of His 
Gospel and the service of His cause. Of the 
Union in particular, I will say that hitherto 
I have merely approved of it. but henceforth 
I glory in it; the great principle of Scottish 
Church history is now bound up with it. Let 
us be faithful to our historic trust; let us be 
loyal and united toward one another, and let 
us seek the presence and guidance of the 
Church's Head with earnestness and confi- 
ple of the Scottish Churqh to be free to live, 
dencc, for is this not a situation in which 
one might say, without irreverence, tbat w'e 
have a right to God’s direction? We came 
out of the House of Lords last Monday on 
the wrong side (according to five judges out 
of a total of eleven, or, perhaps, twelve, who 
have heard the ease) of the law, and have 
thereby lost our property; but we came out 
assuredly on the right side of our conscience, 
and have not lost our historic principles, and 
I think also on the right side even of public 
opinion. The immediate situation is embar¬ 
rassing and full of difficulty, but I, for one, 
have a humble but a deep and an increasing 
conviction that, if only we prove worthy in 
it, out of the confusion will emerge, in God’s 
ow’n time and way, great things, and from 
this year of loss may date the real unitedness 
and the long-claimed and dearly-paid-for 
freedom of our Church, as w'ell as for many 
of us personally, the deepening of great 
Christian convictions and the stirring of 
great Christian enthusiasms. 


Advice from the Established Church 

of Scotland. 


The Rev. Wiliam A. Liston, minister of 
Cardonald Parish, in a sermon preached to 
his own people, on August 14, said: 

“The present crisis arising out of the 
startling judgment of the House of Lords in 
the Free Church case seems to open the way 
for a much wider and more national union 
of the churches than that which has just 
been dissolved was able to achieve. The 
Church of Scotland has already shown her at¬ 
titude in that direction. About twenty years 
ago she made overtures to the Free Church 
to find out what was really the true reason 
that prevented the latter from sharing in her 
patrimony and uniting together in the bonds 
of peace. It was felt that this offer could 
be openly and honestly made, for all that 
the Disruption Fathers fought for had been 
won by the Church. Unhappily this generous 
offer was rejected and refused. Had it been 
accepted then the Free Chureli might have 
had a happier and more honorable union, 
more in harmony with its traditions and 


principles than that into which she ulti¬ 
mately entered, and she would not have 
seen now the sad catastrophe and the appall¬ 
ing circumstances that are confronting her 
to-day. The Church of Scotland is of the 
same mind now as she was then, and I be¬ 
lieve the same offer is open still, and that 
offer is worth thinking about in the present 
crisis. 

“The present occasion, therefore, seems to 
me (Mr. Liston continues) to be a splendid 
opportunity—an opportunity that may never 
occur again—for all the Churches of Scot¬ 
land to reconsider the situation, and to try 
to arrange matters, not for the advantage 
of any sect or party, but for the spiritual 
welfare of the people of Scotland, for the 
peace of all the Churches and the interests 
of true religion throughout the land. And 
if w’ise heads connected with all the sects 
met in council to consider this matter, I be¬ 
lieve it can be efficiently and satisfactorily 
carried out. But I must make this one 
proviso as an essential to its success. The 


matter must be taken out of the hands of 
the clerical leaders, and left in the hands 
of level-headed laymen. The people must 
take the matter up for themselves, and they 
must not allow themselves to be misled 
again. They must see to it that this great 
opportunity is not allow'ed to slip, and that 
this question will be settled altogether 
apart from party lines, political ambitions 
and sectarian selfishness. It is a national 
question, and it must be settled on spiritual 
and religious grounds alone. 

“It would be unbecoming and out of place 
for me (he further says) to lay down any de¬ 
cided or definite plan whereby, this consum¬ 
mation may be brought about. But I may 
indicate this much as the sort of lines along 
which the movement should proceed: Let the 
revenues that have been set loose by the re¬ 
cent decision of the House of Lords, as well 
as the whole patrimony of the Church of 
Scotland, be united into one common fund, 
out of which all the ministers shall be paid 
as the circumstances of the several cases 










35 


THE SCOTTISH 'FREE- CHURCH CASE. 


may require. And then go to Parliament 
for an Act to legalize this arrangement, at 
the. same time empowering the Church to reg¬ 
ulate her own creed, and embodying a redis¬ 
tribution of charges all over Scotland; doing j 
away with churches where they are not re- , 
quired. and erecting others where they are ! 
urgently demanded, and thus preventing 
overlapping, unwholesome rivalry, ruinous ‘ 


j competition, useless expenditure, and. above 
all. doing away with the sectarian bigotry 
!that has been the bane and the bugbear and 
the byword of our country; and let us have 
one United National Church for the whole of 
Scotland, a Church free and independent, 
the property of the people and the glory of 
the land. 

"This, no doubt, is a "large order and 


one that cannot be carried out in a day, 
and it will require a ‘give and take’ on each 
: side. But it is the goal to which all the 
} Churches should earnestly and anxiously di¬ 
rect their gaze. And if the present eatastro- 
! phe can contribute in any way to this end, it 
! will be a ‘crowning mercy,’ and will tend to 
! the religious emancipation and the spiriiual 
welfare cf cur'belcved Scotland.’’ 




United Free Church Conference at 

Inverness, 


The following report of the United Free Church Conference, held at Inverness on Tuesday. August 16 , 
indicates the spirit and temper of the leaders, and the fidelity with which they cling to their cause: 


“The Rev. Alexander Lee. of Edinburgh, 
stated that of 123 ministers in the Synods or 
Moray and Ross, Sutherland and Caithness, 
and Qlenelg, 107 were present; apologies 
had been received from 13, so that ^there 
were only 3 ministers unaccounted for. 
There were also present 261 office bearers 
from the Synods mentioned, besides 43 min¬ 
isters and 55 office bearers from other parts 
of the country. 

The Rev. Dr. Rainy, who on rising was 
received with loud cheers, said he was im¬ 
pressed with the historic position in which 
they were standing. This was not the end¬ 
ing of the case; this is the beginning. How 
it was to be worked out they did not know. 
The House of Lords judgment was so sweep¬ 
ing that it was plain. He had no intention 
of assailing those who brought the action 
against them. That would be out of taste 
and out of keeping. While he had no inten¬ 
tion of attempting to undervalue the learn¬ 
ing and judicial attainments of those who 
gave judgment, that judgment was so aston¬ 
ishing that nobody defended it. The judges, 
no doubt, were constrained to deliver their 
judgment by the legal doctrine which they 
conceived ought to prevail. If so, their law 
sometimes diverged most wonderfully from 

facts and the great interests involved, and 
from the common sense of the community. 
There would be additional trouble before 
them, and litigation—nobody knew how much 
longer continued—before the funds were 

taken from the general trustees. The friends 
of the Free Church perhaps might be con- I 
gratulated or sympathized with, because a 
picture o? himself went with the College. 

There was. however, another of himself in 
the Rainy Hall, which, he supposed, might 
be transferred elsewhere. Dr. Rainy went 
on to say they must stand by the missions 
which God had given them. The judgment 
did not, of course, totich that which came 
i D as l T . P. Missions, but he was de¬ 

ceived if it did not very seriously affect 
the missions which it was a great part 
of the historic pride and thankfulness of 
the Free Church to have built up. He 
had no doubt the purpose 0< .he judgment 


enabled those who brought the action at all 
events to assail the churches and manses. 
Those were at the mercy of their opponents. 
One could hardly believe it or realize it. 
One must suppose there would be some effort 
made to avoid it. The scandal would be too 
great. That was the broad aspect of the case 
as it stood, and as it had come back to the 
Court of Session to be worked out. It was 
not good for the law of the country to come 
into such violent collision with the sensT; of 
the community. After referring to the Law 
Lords’ likening the Church to a mercantile 
company he 6aid they claimed to be the suc¬ 
cessors of those who all along history were 
the spiritual, the Liberal, party in the Church 
of Scotland, which defended the rights of 
the people, and were solicitous to preserve 
their own allegiance to the Church. From 
first to last the one dominant purpose had 
prevailed—that it was the right and duty of 
the Church to hear its Master's voice and 
its right to obey that voice. That dominant 
purpose was denied and overlooked in this 
judgment, bub they were not going to deny 
it. They attached importance to spiritual 
independence and would maintain solicit¬ 
ously the right of the Assembly to act con¬ 
stitutionally under its Barrier Act. As to 
the question of clerical domination, with 
which they were charged, those who 
referred to it did not know what they were 
talking about. They had about 1,100 minis¬ 
ters and 10,000 elders who were represented 
equally with the ministers in the superior 
courts. They, had depended on the people 
for support, and for carrying them through 
at every step. It was not in their Church 
or among people like them that the clergy 
could run away with the power. In con¬ 
clusion, he would be glad if it turned out 
that some arrangement on this matter that 
could be recognized as just, fair and equita¬ 
ble could be attained. Without imputing to 
anybody any particular intention one way 
or another, they ought to appeal to the na¬ 
tional sense of justice in all political parties. 
This was a case totally unexampled in their 
history since the date of St. Bartholomew. 


It, was on a wider scale of havoc than the 
Disruption was, and they were entitled <o 
some remedy, even if it were unexampled, 
in the face of this grievous wrong. It was 
not so much the tremendous pecuniary loss 
and the burden of having to replace it that 
called upon them to make an effort of that 
kind. But they were not bound to submit 
to have the interests and principles they 
were representing trampled upon in the face 
of the nation. They might have had many 
faults, but they had not deserved that. 

The next speaker was Lord Overtoun. who 
said the Lords in their zeal to prevent what 
they thought to be a wrong had committed 
one vastly greater—a cruel injustice. Some 
had said those in the U. F. Church must go 
back. They would never go back. Could 
they go back to a Church which by the 
judgment of the Lord Chancellor had got 
all the property, but was bound down to be 
a frozen Church which could never move? 
He did not envy that Church in its fossilized 
condition as ordered by the Lord Chancellor. 

Professor Denney. Glasgow, dealt at length 
with the question of election aDd predestina¬ 
tion and went on to speak of the Establish¬ 
ment principle. Prof. M’Ewen. Edinburgh, 
said the result of the judgment would be that 
the two branches of the Church would be 
bound together with a closeness which might 
not have been reached for twenty years. 

Thereafter ministers and elders of the va¬ 
rious Presbyteries reported on the situa¬ 
tion. Among those who spoke was ex-Bailie 
Wallace, Tain, who is 94 years of age, and 
who gave reminiscences of the Disruption. 
The Rev. Nigel Robertson and Dr. McKay. 
Wick, reported hopefull^ of the prospects 
in Caithness; the Rev. John Mackenzie, 
Golspie, spoke for the Dornoch Presbytery; 
Mr. Morrison. Melness, referred to the 
Tongue district: the Rev. A. Fraser, Tain, 
intimated what had been done within his 
Presbytery; Mr. Mackenzie, Dingwall, and 
the Rev. Roderick Mackenzie, Marybury. re • 
ported for the Presbytery of Dingwall; the 
Rev. James McLeod and Mr. A. A. Middle- 
ton, Cromarty, related what had occurred 
in the Presbytery of Chanonry; the Rey. 







36 


THE SCOTTISH FREE CHURCH CASE, 


William Morrison, Duthill, and the Rev. 
Mr. Macdonald, Alvie; Mr. Grant, Grantown, 
and ex-Provost Mackintosh, Kingussie, 
spoke for the Sftrathspey district; Mr. Scott, 
Elgin, for Elgin; the Rev. Ronald Dingwall, 
Poole we, for Lochcarron; the Rev. E. Mac¬ 
Donald, Kilmutr, for Skye; ex-Provost | 

Another Possible 
Claimant. 

A correspondent cf the British Weekly 
says: 

“It may surprise many to learn that be¬ 
sides the minority of the Free Church who 
declined to unite with the United Presby¬ 
terian Church, there is another body which 
claims to be ‘the true Free Church of 
Scotland.’ This is the Free Presbyterian 
Church of Scotland, which has been entirely 
forgotten in the discussions regarding the 
Scottish Church case, doubtless because few 
people are aware of the existence of such 
a body. Its origin was due to the passing by 
the^General Assembly of the Free Church of 
the first Declaratory Act, and it consists, 
according to the latest return in ‘Oliver 
and Boyd,’ of eighteen congregations and 
thirteen ministers, one- of whom is now re¬ 
tired. As in the case of the Free Church, the 
strength of the Free Prc-sbyterians, whose 
present Moderator is the Rev. Alexander 
Stewart, Edinburgh, is in the Highlands and 
islands of Scotland, and they have also a 
considerable following among the Highland¬ 
ers scattered throughout Canada. Though 
not numerically strong, the Church has a 
number of students training for the minis¬ 
try, their theological teacher being the Rev. 

J. R. Mackay. of Inverness. The official or¬ 
gan of the denomination refers to the Free! 
Presbyterians as being ‘the true Free j 
Church of Scotland,’ and declares that th^ I 


Smith, Stornoway, for Lewis; the Rev. J. S. 
McPhail, for Benbeeula; and the Rev. Mr. 
Macleod, for North Uist. 

Mr. James McIntosh, S.S.C., Edinburgh, 
referred to the ability of the Church to face 
all the pecuniary demands that the present 
situation riiight require. 


A motion was enthusiastically adopted de¬ 
claring atlherexi e to the great principles of 
the Church’s spiritual independence and her 
right to effect idle Union, and a hearty pur¬ 
pose to encounter faithfully and resolutely 
whatever sacrifices may be needful int this 
great cause. 


Church of 184?. has no exitsence so far as the 
Free Church in 1892 was concerned. The 
members hold substantially the same prin¬ 
ciples as their brethren in the Free Church, 
but have never, it is believed, made any 
overtures for union.’’ 

Roman Catholics and Church of Fng= 
land Property. 

A Glasgow Herald Correspondent, writes: 

“The decision of the House of Lords with 
regard to the funds of the Free Church of 
Scotland has aroused the most intense in¬ 
terest in all ecclesiastical circles. The 
Roman Catholic Church in England will 
now seriously consider the Reformation 
statutes (1, Elizabeth, c. 1 and 2, Ireland 
1560. vide vol. of statutes). If the judgment 
of their Lordships be law the title of the 
English Church to the immense revenues 
Reformation) can be held to be legally taint¬ 
ed. The lawyer and the historical student 
can find in the pages of Lingard and other 
high authorities abundant evidence of the 
parallels between the cases of the Free 
Church of Scotland and the United Presby¬ 
terian Church and the Roman Catholic Church 
and the Church of England. In this connection 
the legal proceedings, terminating with the 
trfal and execution of the last Roman Catho¬ 
lic Lord-Chancellor of England in the reign 
of King Henry VIII, will be perused with 
interest by the adherents of all the churches 
concerned. The oroperty involved has been 
estimated at about £80,000,000.’’ 


The Victorious 
Remnant. 

The following is a list of the twenty-five 
ministers., and their parishes and presby¬ 
teries, who were victorious in their appeal 
to the House of Lords. 

Edinbui 0 n Presbytery—Colin A. Banna- 
tyne, Culter; Robert Gordon, Buccleuch 
Greyfriajs, and D. M. Macalister, Buccleueh 
Greyfriai s. 

Glasgu r Preebytery—John Kennedy Cam¬ 
eron, Kilbride; Henry Carmichael, Coat¬ 
bridge; John M’Leod, Duke Street, aad 
James D. M’Culloch, Hope Street. 

Presbytery of Arran — Ewan MacLeod, 
Oban. Presbytery of Inverness—Roderick 
FinlaysOD, Daviot;.Thomas Ellis. Grantown- 
on-Spey; Murdo M’Kenzie, Inverness North, 
and Donald MacLean, Moy. 

Presbytery of Dingwall—Murdo Macqueen, 
Kiltearn, and Donald Munro, Urquhart. 

Presbytery of Chanonry—Finlay Macrae, 
Knockbain West, and John Maciver. Resolie. 

Presbytery of Dornoch—Kenneth Cameron, 
Clyne; Norman Campbell. Creich; John No¬ 
ble, Lairg, and John Macdonald, Tongue. 

Presbytery of Caithnees—Alex. Auld, Olrig. 

Presbytery of Lochcarron—Donald M’- 
Leod, Coigach; William MacKinnon. Gair- 
loch; Kenneth Macrae, Glenshiel, and Angus 
Galbraith, Lochalsh. 

Presbytery of Skye and Uist—Angus Mac¬ 
kay. Kilmuir; John Macdonald, Raasay, and 
William Fraser, Sleat. 

Presbytery of Lewis—Hector Cameron, 
Back; Hector Kennedy, Park, and Nieol Nie- 
oison, Stawbost. 


THE SCOTTISH FREE CHURCH CRISIS. 


Man, liae ye haurd this ferlie new 
That’s whuzzin’ thro’ the toon? 

Yell no believe it. yet it's true 
As aught beneath the moon. 

Ca’ hatne, put on yer Sabbath cla’es 
This grandest day o' a' the days, 

Fess oot yer Sabbath shoor.! 

Thae wolves in clothing o' the sheep— 

TV weel ye mind their plan— 

Wi’ gloziu' clash an' eunnin’ deep 
A bonnie net they span; 

“Frae Maidenkirk to John o’ Groats" 

They streetched their threids and wove 
their plots 

To dean bewutch the lair. 

“Far back,” quo’ they, “lies forty-three, 
We're wiser grown sin syne; 

Tam Chalmers’ sei’ wad choose ’gin he 
Were here, tile braw New Line: 

Wi’ U. P. brithers—a’ ae breed— 

Auld grudges we'll hap up—they’re deid— 
An kauri's thegithcr join!" 

Wi sic-like elcekit clavers saft 
Their leaders fed the iowe; 

Delusion drave th’ Assembly daft— 1 


A Ballad o’ the Free. 

(They’s sobered noo, 1 trow) 

Bedeevil'd by its eldritch power 
“Ay, ay,’’ cried a’—save twunty-fowre, 
Who dourly shook their pow! 

’Twas bet M’Fechter frae the hills, 

He up and baudly spak’— 

“We’re ane to fufty—work yer wills— 

I carena—lint a plack! 

Gomorrah’s 'richteous few’ are we. 

An’ on the Kirk, our ain, the Free, 

We daurna turn our back. 

“It's no for Union ye’re sae *fain, 

But Leeeence—fairly ca'ed— 

To gang yer feckless gates, whaur nane 
Yer croose can guide or baud. 

An’ creetic's heresies to spin 
’Or lat, thro’ sneckless winnoclts, in 
The Babylonian Jaud! 

"Ay—ane may rant and ane may scauld, 
Anither lauch or fleer,— 

For them ye've left to thole the catild 
Yer graqe we dinna speer. 

But heed ye this—in spite o’ quirk 
An’ lees and havers—we’re the Kirk 
That’s stood this saxty year!”- 


The remnant wandered hame-awa'; — 
Ow’r lang a'wad tak' tae tell 
The weary strife 'twixt richt and law 
That filled a towmond s spell;-- 
The “wigs” at Embro’ leagued wi’ wrang, 
Till recreants ’’Tullochgorum” sang, 

An’ thoc-ht they bore the bell. 

But aften, freend. in sairest need 
Deeleevrance cheers the nicht; — 

An’ sae frae far ayont the Tweed 
There’s Hashed an unco’ licht; 

The Lords they met in Lunnon toon.. 

An’ Halsbury’s sei’, quo’ he—“You loon 
M’Fechter’s i’ the richt.” 

Heeh, Donal’. tlion s an awfu’ slap! 

The pair young slauektered Wean! — 
I’m thinkin’ we’ll affoord a drap 
Tae dull our speerits’ pain,— 

For noo the kirk, a vast o’ lan’, 

An’ a’ the manses, as they stan’, 

An’ a' the gowd’s our ain. 

W. M. M. Rorison, in the Scotsman. 










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